Minshew v. State

102 S.E. 906, 25 Ga. App. 240, 1920 Ga. App. LEXIS 708

• Court: Court of Appeals of Georgia
• Decided: April 14, 1920
• Docket: 11247
• Status: Published

Opinions

Broyles, C. J.

1. An indictment under section 677 of the Penal Code of 1910, for performing a marriage ceremony illegally, is fatally defective where it does not charge that the marriage ceremony was performed without a license or publication of barms, as provided by law, or that either of the contracting parties was, within the knowledge of the marrying official, an idiot or lunatic, or subject to some other disability which would render the marriage improper and illegal.

(a) The fact that the license was issued by the' ordinary of a county in which the female did not reside, while improper and contrary to law, would not in itself render the marriage illegal; and therefore the knowledge of this fact by the marrying official would not constitute a violation of section 677 of the Penal Code. A marriage may be legal without any license at all. Clark v. Cassidy, 64 Ga. 663 (4); Dale v. State, 88 Ga. 556 (15 S. E. 287). This being true, it clearly follows that a marriage may he legal although the license was procured in the wrong county.

2. Under the above ruling the court erred in overruling the demurrer to file indictment.

Judgment reversed.

Luke, J., concurs; Bloodworth, J., concurs specially.

(.2) No facts are alleged which would show that the marriage was illegally performed. (3) Under the facts alleged the marriage ceremony was legal. (4) It is not alleged that at the time of the issuance of the license the female was a resident of a county other than that in which the license was issued; but even were it so alleged it could not be the basis of a criminal charge against the marrying officer, because the right to issue the license is a matter for judicial determination by the ordinary issuing it, and not subject to review by any officer authorized to perform a marriage ceremony. (5) No disability to contract marriage is alleged; “the ‘other disability’ referred to in the code section defining such offense meaning any other disability of the same class as idiocy or lunacy, whereby a party would be totally incapacitated to contract marriage, and absence of license entirely does not constitute such disability.” (6) It is not alleged that there was no publication of banns.

Cutts Nicholson, for plaintiff in error,

cited: Penal Code (1910), § 677; Civil Code (1910), §§ 2936, 2937, 2938; 64 Ga. 662 (1); 84 Ga. 440; 63 Ga. 533; 114 Ga. 96; 69 Ga. 754; 30 Ga. 173; 130 Ga. 161,168; Park’s Ann. Code, § 4, par. 9, and cit.; 103 Ga. 429; 121 Ga. 412; Civil Code, § 2931.

J. B. Wall, solicitor-general, Jesse Grantham, A. J. McDonald, contra,

cited Penal Code (1910), § 677; Civil Code, §§ 2936, 2939.