State v. Bittick

Thomas, J.

The defendant was indicted and convicted in the Callaway circuit court for taking away Bertha A. L. Bice, a female under eighteen years of age, from Sarah Rhine, her mother, who had the legal charge of her, for the purpose of concubinage, and was. sentenced to imprisonment in the penitentiary for a term of two years. From this sentence he has taken his appeal to this court. The record shows that the defendant was a widower, with six children, and according to the finding of the jury Bertha A. L. Bice was under eighteen years of age. She lived with her mother, who was a widow.

The mother testified that the girl was about sixteen years old. The girl worked at defendant’s, and it seems fell in love with him, and she and he desired to marry, but, the mother refusing to give her consent, they were unable to obtain a marriage license. Determined, however, not to be thwarted in their designs and wishes, they got together, and F. L. Minor testified as to what then occurred as follows: “ Know Mrs. Rhine and Bertie Bittick, the wife of defendant. Bertie and defendant were married at my house about the sixteenth of last April; were married publicly, in the presence of over twenty persons. They married themselves. There was no minister or officer present. They stood up in the parlor floor and mutually agreed and promised to marry each other. They publicly made known themselves as man and wife ; lived, cohabited and held themselves out' to the world as man and wife. They were known and recognized by the public as man and wife. They, at the time of said marriage signed and executed a written marriage contract, which was attested by myself and a number of others.

Witness identified the following contract as made by the parties, and witnessed by him and others :

“marriage contract.

“We, Hiram J. Bittick and Bertie A. L. Bice, enter into a solemn vow to live together so long as we may both live, to live together as man and wife, in the presence of our God and the undersigned witnesses, at the residence of F. L. Minor, in Cote Sans Dessein township, county of Callaway, state of Missouri, on this sixteenth day of April 1890. H. J. Bittick,

“Berti-ia A. L. Bice.

“ Witnesses:

“F. L. Minor, Agnes Bittick,

“ W. A. Johnson, Olivia Rieestieok,

“Fannie A. Johnson, Rose Rieestieok,

“ Jane T. Minor, William Rieestieok,

“ Herbert Johnson.”

“The above and foregoing instrument of writing was filed for record, April 29, 1890, at 10 :20 a. m., and duly recorded. George W. Penn,

“By P. B. Bailey, Recorder.

“Deputy Recorder.”

This is a sufficient statement of the facts of this case, to present the points involved.

Upon the facts thus given, the court gave ten instructions at the instance of the state and seventeen at the instance of defendant, and yet defendant complains that the court did not fully instruct the jury. The view we have taken of the case renders it unnecessary to refer to the instructions specifically. Suffice to say that the court told the jury that the marriage ceremony and contract as given here did not constitute a marriage and, therefore, that defendant could not escape the penalty of the statute under which he was indicted, on the ground that he had made Bertha his wife. The defendant contends that this was error and that this ceremony and contract did constitute a valid marriage, and, therefore, that defendant and Bertha were after April 16, 1890, man and wife and had a right to cohabit together as such, and this is the point to be decided.

Owing to the importance of the question, involving as it does the best interests of society, and the preservation of the home and family, the basis of all good society, we gave it a very careful consideration. This and kindred questions have been before the American and English courts so often and the subject has been so frequently and thoroughly discussed by the courts and text-writers, that we deem it unnecessary and even a profitless task to review the authorities again in this case. Ever since 1805 we have had statutes in this state regulating the marriage ceremony and providing who might solemnize it. These statutes remained in substance the same till 1881, when for the first time an act requiring a license to marry was passed. Prior to this change, the question, as to whether the statutes of this state on the subject superseded the common law and rendered a marriage not in conformity with the statutory requirements void, was before this court in 1857, in State v. McDonald, 25 Mo. 176 ; in 1876 in Cargile v. Wood, 63 Mo. 501; in 1877, in Dyer v. Brannock, 66 Mo. 391; and again in 1883, in State v. Gonce, 79 Mo. 600.

Two propositions are conclusively settled in this state by the cases above cited: First. That prior to the adoption of the statute in 1881 requiring a marriage license before anyone authorized by the statute could perform the ceremony, a marriage according to the common law was valid in this state, though not in conformity to the statute. Second. In the interpretation of statutes on the subject of marriage, a common-law marriage is good though not in conformity to the statutory requirements, unless the statutes contain express words of nullity. And we may add that this rule of interpretation has been adopted in nearly all the American states. See Stewart on Marriage and Divorce, sec. 53, where the authorities are collated and also 1 Bishop on Marriage and Divorce, sec. 283, as well as the cases cited in Dyer v. Brannock, supra.

These two propositions being settled even' beyond debate, let us see if it was intended by the statute of 1881 to change or modify them or either of them.

The first section of this act ( Sess. Acts, 1881, p. 161) provides that, “Previous to any marriage in this state, a license for that purpose shall be obtained from the officer herein authorized to issue the same.” The remaining provisions of. the act are substantially as they had existed prior to its enactment, the changes made being such only as to make a statutory marriage conform to the theory of the license system. And the statute of 1881 was, in all essential particulars, in force in 1890, when defendant and Bertha were married as they claim. By other secti®ns of this act, the officer authorized to issue marriage licenses was prohibited from issuing a license authorizing the marriage of any male under twenty-one, or female under the age of eighteen years except with the consent of his or her father, or if-he is dead, etc., his or her mother, etc., and imposing penalties upon those who issue licenses or solemnize the marriage ceremony contrary to the statutory requirements. But there are. no words in the act declaring a marriage not in conformity to the statute null and void. Hence, applying the rule of interpretation of marriage statutes given above to the statute in forcé on April 16, 1890, we see, that if the marriage of defendant and Bertha was good at common law it was not made null and void by the statute and is, therefore, valid.

The only question remaining, therefore, for us to determine is, did the contract in this case constitute a valid common-law marriage? We think it did. Our statute defines marriage thus: “Marriage is considered in law as a civil contract, to which the consent of the parties capable in law of contracting is essential.” While it is here declared to be a civil contract, it is almost universally held to be something more than an ordinary contract. Marriage is a status, created by contract, and we formulate the definition of it as follows : Marriage is the civil status of one man and one woman, capable of contracting, united by contract and mutual consent for life, for the discharge, to each other and to the community, of the duties legally incumbent on those whose association is founded on the distinction of sex. The contract of marriage in this case comes up to every requirement of this definition. It created the relation of husband and wife between the defendant and Bertha, so long as they both should live. In form, then, the contract was good and constituted a valid marriage at common law. 1 Bish. Mar. & Div., secs. 2 and 3.

This relation between them is indissoluble except by death or decree of court. It is scarcely necessary for us to cite authorities that at common law a female of the age of twelve and a male of fourteen were capable of entering into a contract of marriage. 1 Bish. Mar. & Div., sec. 145. There is no question that the parties in this instance were capable of assuming the marital relation, by contract, at common law. The defendant having entered into a valid marriage with Bertha A. L. Bice and thus made her his wife, he is not goilty of the crime of taking her away from her mother for the purpose of concubinage.

We will add that we have come to this conclusion very reluctantly, for we feel that the best interests of men and women and children, of society, of the family, and the home require that parties should not “marry themselves,” and that all marriages should be entered into publicly before those authorized by law to solemnize them, and put upon the public records. But we are not here to make the law conform to what we think It ought to be, but to declare it as it is. As late as 1877, this court, after a full review' of all the authorities, declared that a statute prescribing the formalities to be observed in the solemnization of marriage did not render marriages entered into according to the common law, but not in conformity to such formalities, void, unless the statute itself declared them null, and that this rule of interpretation had been the rule since 1857; and yet, when the statute of 1881 was enacted, the words of nullity of all marriages not in conformity to the statute were omitted. If the law-making power had desired to make common-law marriages void, all that was required was to add to the first section of the act of 1881 these words, “ and all marriages entered into without a license shall be void.” This was not done and hence we must conclusively presume that it was intended that that act should be interpreted by the rule then in force, as declared by this court. The legislature has the power to add these words at any time but this court has no such authority.

The judgment of the lower court is reversed, and defendant discharged.

All concur.