Robertson v. State

42 Ala. 509

• Court: Supreme Court of Alabama
• Decided: June 15, 1868
• Status: Published

Opinions

A. J. WALKER, C. J.

The verdict, in this case, fails to ascertain the degree of murder in which the defendant was guilty, and the court erred in passing sentence upon the verdict. The precise question is decided in Hall v. State, 40 Ala.; see, also, Revised Code, § 3657 (115); Johnson v. State, 17 Ala. 618; Cobia v. State, 16 Ala. 781; Dick v. State, 3 Ohio, 89; Parker v. State, 3 Ohio, 101; McGee v. State, 8 Mo. 495; State v. Upton, 20 Mo. 397 ; Kirby v. States, 7 Yerger, 659; Wharton's American Criminal Law, §§ 1115, 1121.

It is ingeniously argued by the Attorney General, that the punishment prescribed by the verdict was authorized only upon the ascertainment of the defendant’s guilt of murder in the first degree, and it must therefore be intended that the jury did find the degree of the offense, which justified them in the imposition of the punishment. Verdicts in cases of felony can not be helped by such intendments. — Turner v. State, 40 Ala. 21. But, in addition, the statute is imperative in requiring the jury to fix the degree of murder. It is a right of the accused that they should do so. That right has not been awarded to him. An error has therefore been committed, and it does not become us to withhold a reversal upon any nice speculation as to whether the accused has been injured. We can conceive, however, of injury that the defendant may have sustained, and if this were not so, we should be extremely reluctant to open a question so well and so often settled.

On the trial a woman was offered as a witness, to whose competency the accused objected, on the ground that she was his wife. The court overruled the objection, and the correctness of this ruling is assigned as error. The defendant and the witness were, it seems, colored people. The witness, on her voir dire, stated that she and the defendant agreed to marry ; that the defendant told her that he could not get a license for them to marry at that time, because “ all the old licenses bad run out,” but that “ as soon as the new licenses come in,” he would get a license and marry her, and that upon this agreement they cohabited. The agreement to marry here had reference to the future. It was an agreement to marry at a future time upon the occurrence of an antecedent event — the procurement of a license. The cohabitation was necessarily before the occurrence upon which the agreement to marry was to be consummated. The cohabitation was, therefore, not in fulfillment of a matrimonial agreement, but in advance of an anticipated marriage. It was obviously understood to' be an adulterous connexion procured, and perhaps, in the estimation of the parties, excused by the promise and prospect of a future marriage. There are many authorities that sustain the proposition, that in the absence of statutory restraints, a marriage may be had per verba de futuro cum copula, but this doctrine is only reasonable upon the idea, that the copula was prima facie evidence of an acceleration of the espousals. Where this idea is negatived, as in this case, to regard the marriage as consummate, would reverse the maxim, “ concensus, non concubitus, facit nuptiam.” It would substitute the copula for tfhe consent as the constituent of the marriage. There is a very extended and learned consideration of this subject and review of the authorities by Bishop, in his work on Marriage and Divorce, vol. 1, chap, xii, xiii, to which we refer. Here the very terms of the agreement exclude the idea, that the parties consented to marry until a license was obtained, and to infer the consent would be in contravention of an established fact. This we do not think would be right upon principle and policy to do.

In a dictum the learned chief justice, in The State v. Murphy, 6 Ala. 765, intimated that a marriage might, in this State, be consummated without license and without formal solemnization. The ease now in hand does not require us to examine this subject, and we mention it merely to say, that we consider the question, whether under our statutes a legal marriage can be had without license and without solemnization, as open and unsettled. In this case the witness and the defendant were not man and wife, and the former was a competent witness, even if a license and formal solemnization can be dispensed with. It is not necessary for us to notice any other question in the case.

Reversed and remanded.