State v. Sellers

134 S.E. 873, 140 S.C. 66, 1926 S.C. LEXIS 203

• Court: Supreme Court of South Carolina
• Decided: September 30, 1926
• Docket: 12075
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Brease.

The defendant, Dock Sellers, who was indicted, tried and convicted in the Court of General Sessions for Marlboro County for bigamy, has appealed to this Court. The record is meager, and the facts are not'very clearly stated. It appears, however, that the undisputed and material matters, brought out in the trial, are as follows:

(1) That Dinnie Bailey, when she was only 11 years of age, was married to.Cy Reynolds.

(2) That Dinnie, after living with Reynolds as his wife for about four weeks, left him, she being at the time still under the age of 12 years, and they have not since lived together as husband and wife.

(3) That, except as Dinnie herself attempted to revoke the marriage to Reynolds, there has been no dissolution or annulment of such marriage. While Reynolds attempted to secure a divorce, it is admitted that this endeavor to do so was not legally accomplished.

(4) That thereafter Dinnie married, or attempted to marry, the defendant, Sellers, with whom she lived a short while.

(5) That the defendant later married Edith Hewitt.

The State based its charge of bigamy against the defendant on account of his marriage to Edith Hewitt, when his marriage to Dinnie Bailey (or Reynolds) was still of force. The defense was that the marriage of defendant to Dinnie was not valid, because of her prior marriage to Reynolds, and that the marriage of defendant to’ Edith Hewitt was therefore valid and not bigamous.

At the close of the testimony, the defendant moved for the direction of a verdict of not guilty on the ground that all the evidence showed that the marriage of defendant to Linnie was void because of her prior marriage to Reynolds, and that defendant’s marriage to Edith was legal. The Circuit Judge refused this motion on- the ground that the marriage of Linnie to Reynolds was void on account of her age, and that her marriage to the defendant was valid,

The Judge charged the jury as follows:

“If you are satisfied from the evidence that at the time Linnie Bailey undertook matrimony with Cy Reynolds in 1908 she was under 12 years of age, then I charge you that any attempted marriage on her part was null and void, and that would not prevent her from contracting legal matrimony with the defendant in 1920.”

The appeal alleges error in refusal to direct a verdict of not guilty, and in charging the law as quoted above. Both the assignments of error will be disposed of together, as they raise the same question.

“Bigamy was not a crime at common law, .but an offense of exclusively ecclesiastical cognizance.” Bj^ statute, it was made a felony in England. 3 R. C. L., p. 796. It seems the first legislative enactment in this State, defining the crime and fixing the punishment therefor, took place about the year 1712. Our present law on the subject is found'at Section 374 of Volume 2 of the Code of 1922, and is as follows :

“Whoever, being married, and whose husband’ or wife has not remained continually for seven years beyond the sea, or continually absented himself or herself, the one from the other, for the space of seven years together, the one of them not knowing the other to be living within that time, or who were not married before the age of consent, or where neither husband nor wife is under sentence of imprisonment for life, or whose marriage has not been annulled by decree of a competent tribunal having jurisdiction both of the cause and the parties, shall marry another person, the former husband or wife being alive, shall, on conviction, be punished by imprisonment in the penitentiary for not more than five years nor less than six months, or by imprisonment in the jail for six months, and by a fine of not less than five hundred dollars.”

It will be observed from the first three words of the statute, “Whoever, being married,” and the later expression therein, “shall marry another person, the former husband or wife being alive,” that it is necessary before one may be convicted of the crime of bigamy that it must be established that he was married to another person. The prior marriage necessary to sustain the offense, as defined in the statute, must, of course, be 'such a marriage as is recognized in the law.

While it must be shown that the defendant, in a bigamy case, had contracted a first marriage at the time of his attempted second marriage, it appears that if the first marriage was voidable, and not void, yet the crime is complete. The general rule seems to be this:

“The foundation of the crime of bigamy is always a valid first marriage, which is in fact a.part of the cor pits delicti, and the pressure in point of evidence usually relates to it. It must be proved as a fact and the question of its validity must be determined by the law of the place where the ceremony took place. The evidence should show that the parties in some form before some duly authorized person, where common-law marriages are not recognized, ■ declared that they took each other for man and wife; and this contract of marriage alone is sufficient whether or not it was followed by cohabitation. If the prior marriage is void the subsequent marriage is legal, as bigamy can occur only through the marriage of a person already married. [Italics ours.] A good example of these principles occurs where a man marries a second wife in the lifetime of the first, and then the first marriage is dissolved by death or divorce, and he marries a third wife, in which event he can be convicted of bigamy for the second marriage but not for the third. The second marriage is a nullity and the third marriage is binding. Of course, there may be cases where the cohabitation with the second wife after the termination of the first marriage operates as a common-law marriage. If, for example, the second wife knows the facts in regard to the first marriage and after its termination consents to live with the man openly as his wife, she may thereby acquire the status of a wife; but if she never knew of the first marriage and never entered into a new contract of marriage after the termination of the first marriage there can be no question that the second marriage would be void so’ far as a prosecution for bigamy is concerned. But although á void first marriage is insufficient on which to found a charge of bigamy a marriage merely voidable may be enough. So a marriage with a person under the age of consent, or even one solemnised by an unauthorised person, may be a valid basis for a prosecution for bigamy[Italics ours.] 3 R. C. T., p. 799, Par. 7.

Pointing, as authority, to decided cases from jurisdictions other than our own, to .sustain the doctrine that a voidable marriage, made so because of the want of age in one or both of the contracting parties, will sometimes support a charge of bigamy, Corpus Juris has this to say:

“A voidable marriage will support an indictment for bigamy, inasmuch as it is binding, in general, on the parties thereto until it is set aside sunder a direct proceeding instituted for that purpose. A prior marriage, voidable for the want of legal age of either or of both, of the contracting parties, will sustain a conviction for bigamy, unless such marriage has been judicially annulled because contracted under the statutory age of consent, unless there was a separation with the consent of the minor before attaining majority, or unless the marriage was not confirmed by co habitation after arriving at the age of consent.” 7 C. J., 1159.

Agreeable to the view that it is only necessary to establish a “voidable marriage” to support an indictment for bigamy is the case of State v. Smith, 101 S. C., 293; 85 S. E., 958, Ann. Cas., 1917-C, 149. In that case, the defendant had first married his niece of the half blood; without any annulment of that marriage, and while the first wife was still alive, he married again. This Court held that at the time of the marriage to-the niece such marriage was not void under the law of this State, but only voidable, and, since there had been no proceedings to have the same declared invalid, the second marriage was bigamous. In the opinion therein, Mr. Justice Hydrick quoted with approval the distinction between void and voidable marriages, as laid down' by Mr. Bishop, which we set out:

“A marriage is termed void when it is good for no legal purpose, and its invalidity may be maintained in any proceeding, in any Court, between any parties, whether in the» lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally. A marriage is voidable when in its constitution there is an imperfection which can be inquired into only, during the lives of both of the parties, in a proceeding to obtain a sentence declaring it null. Until set aside, it is practically valid; when set aside, it is rendered void from the beginning.”

While, as pointed out, a prior voidable marriage will sustain an indictment for the crime, “an indictment for bigamy cannot be sustained, where the prior marriage was void.” 7 C. J., 1158.

In the case at bar, the marriage of Linnie and the defendant was, clearly, not a voidable marriage. That contract of matrimony was either void ab initio, or absolutely valid. Since it is admitted that the defendant had full capacity in the law to enter into that contract, the inquiry leads to an examination into the capacity of Linnie to do so. Obviously, if the marriage of defendant to' Linnie was void db initio as to her, it was likewise so void as to the defendant. Then, the pivotal point is the legal capacity of Linnie to marry the defendant! To ascertain if Linnie was free to marry him, we must turn our attention to her marriage to Rejmolds and her status thereafter.

It is a conceded fact that at the time of the marriage to Reynolds Linnie was only 11 years of age. -With reference to that marriage, the Circuit Judge held on the motion to direct the verdict and in his charge to the jury that because of her age such marriage was absolutely void, and not voidable. -If he was correct, then Linnie and the defendant had the right to contract their marriage, and it would follow that the defendant could not legally marry Edith.

The whole case, then, seems to revolve around two questions: Was Linnie’s marriage-to Reynolds void or voidable? If voidable, could she by her own act annul it? In order to answer the first question, it is necessary to make inquiry concerning the law of this state as to the age at which a female may contract matrimony. The statute law seems to have been altogether silent in this regard until the passage of the regulations as to the issuance of licenses for marriage. The license marriage act, however, could not have any effect as to the marriage of Linnie to Reynolds, since such marriage occurred in 1908, prior to the passage of that legislation. But if that law, as it now appears in our Code, had been of force in 1908, it is doubtful if it would have had any effect upon the marriage of Linnie to Reynolds, when she was only 11 years of age, for, while it is necessary for the “woman, or child woman,” to be at least of the age of 14 years before a license for her marriage may be granted, and while it is a misdemeanor for the marriage of a girl under 14 to be performed, still the law has a provision that nothing contained therein shall render any marriage illegal when no license therefor has been issued.

In Section 33 of Article 3 of. the Constitution of 1895, there is this provision:

“No unmarried woman shall legally Consent to sexual intercourse who shall not have attained the age of fourteen years.”

But this language can have no reference to the age at which a woman can consent to matrimony. The rule at common law was that an unmarried female under 10 years of age could not consent to sexual intercourse. The evident purpose of the constitutional provision was to' raise that age to 14 years. We do not see how it affects the age at which a woman may marry.

The legislative power not having been invoked concerning the age at which persons may contract matrimony, the rule of the common law was, and is yet, of force, since that system of jurisprudence obtains in this state until it is altered, modified, or repealed by enactment of the lawmaking body. It becomes necessary, then, to look back to the common law for light on the subject under investigation.

“At common law a marriage of persons under the age of seven years was a nullity, but over that age, and under the age of consent, the marriage was not absolutely void, but only voidable.” 18 R. C. L,., p. 441, par. 70.

Mr. Blackstone, discussing the subject of marriage, had this to say:

“The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; a fortiori, therefore, it ought to avoid this, the most important contract of any. Therefore, if a boy under 14, or a girl under 12 years of age, marries, this marriage is only inchoate and imperfect; and, when either of them come to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual Court. This is founded on the civil law. But the common law pays a greater regard to the constitution, than the age, of the parties; for if they are hábiles ad mcntrimonium (fit for marriage), it is a good marriage, whatever their age may be. And in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again. If the husband be of years of discretion, and the wife under 12, when she comes to years ■of discretion he may disagree as well as she may; for in contracts the obligation must be mutual; both must be found, or neither; and so it is vice versa, when the wife is of years of discretion and the husband under.” Volume 1, Book 1, 'Cooley’s Blackstone (4th Ed.), 436.

Adverting to the facts of this particular case, with the endeavor to apply to them the law as given by the great commentator, it would seem that if the common law alone is to govern, the following would be the situation: Linnie being under the age of 12 at the time of her marriage to Reynolds, that marriage was “inchoate and imperfect.” When she came to the age of consent, namely, 12 years, with or without the consent of Reynolds, she had the right to declare the marriage void, and it was not required of her to go into any Court for that purpose. This, of course, would have given her the right to1 marry the defendant, and such marriage between them would have been legal and valid in all respects. Not only did Linnie have the right under the common-law rule to annul her marriage to Reynolds, but, under that same rule, Reynolds had the same right to revoke that particular marriage when Linnie arrived at the age of 12, or any time prior thereto; and such action on his part would have cleared the way for Linnie to marry the defendant.

But more and more as civilization has advanced, and as woman has come to be recognized as. more than a chattel in the eyes of the law, and to prevent the stamp of illegitimacy being placed upon innocent children, the harsh rule of the common-law has been' changed by statute. The tendency • of legislation has been toward the protection of “women-, children” and their children.

While it does not appear that the common-law rule, as to the age at which persons may marry, has been changed by legislative enactment, there are some statutes of force in the State which we think directly bear upon this subject, and are applicable to the case at bar. We find in Volume 3, Code of 1922, in the same chapter wherein is written our marriage license act, three sections which we consider of great importance in the consideration of the matter before us. They are as follows:

5531. “When-the validity of a marriage shall be denied or doubted by either of the parties, the other may institute a suit for affirming the marriage; and, upon due proof of the validity thereof, it shall be decreed to be valid; and such decree shall be conclusive upon all persons concerned.”

5532. “The Court of Common Pleas shall have authority to hear and determine any issue affecting the validity of contracts of marriage, and to declare said contracts void for want of consent of either of the contracting parties [italics added], or for any other cause going to show that, at the time the said supposed contract was made, it was not a contract: Provided, that such contract has not been consummated by the cohabitation of the parties thereto.”

5533. “All marriages contracted while either of the parties has a former wife or husband living shall be void: Provided, that this section shall not extend to a person whose husband or wife shall be absent for the space of seven years, the one not knowing the other to be living during that time; nor to any person who shall be divorced, or whose first marriage shall be declared void by the sentence of a competent Court.”

The section last cited seems to have come into our law in 1712, about the same time when the statute against bigamy, Section 374 of Volume 2 of the. Code, already set forth, was enacted. Section 5531 was apparently enacted about 1872, while Section 5532 seems to have passed in the General Assembly in 1882. These three sections, as well as Section 374 of the Code, were of full force at the time of the marriage of Linnie to Reynolds, also, when Linnie married the defendant, and again when the defendant married Edith. Accordingly, it is proper to bring all four of the cited sections to bear upon the facts of this cause.

Before the provisions of Sections 5531 and 5532 became a part of our law, it was held time after time that there was no Court in this State with power to annul a marriage for any cause. Mattison v. Mattison, 1 Strob. Eq. (20 S. C. Eq.), 387; 47 Am. Dec., 541. Bowers v. Bowers., 10 Rich. Eq. (31 S. C. Eq.), 555; 73 Am. Dec., 99.

Sections 5532 and 5533, from Volume 3 of the Code, were ably considered and discussed in the case of Davis v. Whitlock, 90 S. C., 233; 73 S. E., 171, Ann. Cas., 1913-D, 538, and it was definitely decided in that case that the Court of Common Pleas, as now constituted, had the power to declare a marriage void for want of consent of either of the contracting parties, or for any other cause, showing that at the time the supposed contract of marriage was made it was not a contract: Provided, that such marriage had not been consummated by the cohabitation of the parties.

Following the able reasoning of Mr. Justice Woods in the Davis case, which was concurred in by the majority of the members of a strong Court, we are inclined to think that we may go perhaps another step or two in the matter of protecting young womanhood and saving little children the stigma of being pronounced illegitimates; and it is clear to our minds that the Legislature intended this to be done.

Prior to the passage of the laws now set forth in the sections to which we have invited attention, it must have been apparent that it was harmful to womanhood, and to public morals in general, to1 follow the rule of the common law that either or both parties to a marriage, where the boy had been under 14 years of age, or the girl under 12 years of age, should have the right to annul their marital vows when either- or both of them had come to “the age of discretion,” and thus bastardize children who would have been made legitimate in all respects if their father and mother had seen fit to live together for even a day after their arrival at the age of consent. The General Assembly of South- Carolina, undoubtedly, intended to correct this evil, and we think the statutes mentioned were enacted for that purpose, and have aided in doing so.

By these enactments, the Court of Common Pleas was thrown open to all persons who denied or doubted if they were legally married. That, Court was given authority to hear and determine any issue- affecting the validity of contracts of marriage and to declare such contracts void where it is shown that there had been no legal consent of the contracting parties. The very wise provision is contained in the law, however, that no marriage should be annulled for want of consent, or for any cause going to show that, at the time the supposed contract was made, it was not a contract, if such marriage had been consummated by cohabitation of the parties thereto. It cannot be doubted that one of the main purposes of the proviso' in Section 5532 was to keep children from the stain of illegitimacy.

Other reasons which, to our mind, must have moved the General Assembly to require questions pertaining to the validity of marriages'to be passed upon by a Court of record, were to give .the parties vitally interested in the marriages, which might be disputed, as well as the public generally, information as to the status of persons who' might claim at some time to be married and at other times not to be bound by the ties of matrimony. If the loose method of the common law, as to the annulment of marriages of persons under the age of consent, should be held to be of force in this State, it would be difficult, indeed, in many instances, to know if certain stated persons were married or unmar ried. Under the common-law rule, as we understand it, a man could marry a girl under the age of consent, and before she arrived at that age there might be an annulment with the mutual consent of both parties, or at the instance of either of them. Later the contracting parties, when both of them had arrived at the age of consent, might resume their marital relations and thereby ratify the former voidable marriage. It would be almost impossible for one who had to deal with persons in this situation to be informed as to the proper course to pursue, in man)'- important transactions of life, including, for instance, the sale of real estate, where the dower right of a woman would be involved. There would be no public record of the annulment of a marriage of infants under the age of consent. On the other hand with the Court of Common Pleas open for the determination of questions pertaining to the validity of such marriages, all who are interested in ascertaining if a marriage of infants .is still of force may make an examination of public records to ascertain if there has been a judicial decree affirming or annulling the questioned marriage. The tendency in this day is for the keeping of records of those who1 contract matrimony, not only for the benefit of the contracting parties themselves, but for the public good. Even before it was deemed necessary to keep a public record of marriages, it was deemed most wise that a public record be kept of annulments of disputed marriages, when it was determined that the marital contract had not been legally assented to. It is not mere conjecture for us to think that when the statutes, which we have set out, became the law of the land that the legislative intent included the idea that some Court should make and preserve for all time records of annulled marriages.

We are of the opinion that when the lawmaking branch of our government said to those who doubted or denied the validity of their marriage contracts that they could have all questions pertaining to 'such validity passed upon and determined by a Court of justice, that it was a repeal, and, certainly, a modification of, the loose manner in which marriages were annulled in the common law by persons who had entered into that state before the age of consent. The practical effect'of this legislation'was to say to boys under 14 and girls under 12:

“Since you entered into the contract of matrimony before reaching that age in life when you had ‘discretion’ to undertake such a serious responsibility, you may have your voidable contract declared void, but you cannot do^ so without the aid of a competent tribunal, and such Court will not even change your statute if you “have consummated your contract by cohabitation; you may be relieved of your duty to each other, but you cannot cast off your responsibility to your children, not even a possible unborn child.”

To summarize in one short statement: We hold that while the common-law rule as to the age of consent for marriage has not been changed in this State, we do conclude that the common-law right of a person to ja. marriage contract, voidable because of want of age of one of the contracting parties, to annul the same by his or her own act, without a decree of the Court of Common Pleas, has been abrogated, and such marriages may only be declared void by that Court when there has been no cohabitation between the contracting parties.

This conclusion, we are pleased to say, is in line with the general tendency of modern legislation touching the subject of void and voidable marriage as the following will show:

“It has been laid down as a general rule that canonical impediments to marriage, such as consanguinity, affinity, impotence and the like render a marriage merely voidable, while the so-called civil disabilities, • such as want of age, idiocy, lunacy, and the like, which prevent by reason of lack of capacity to contract the creating of a marital status, make a marriage void ab initio. But whether a marriage should be treated as entirely void, or should be open to attack only in a specific proceeding brought by certain persons, is purely a question of policy for the Legislature, and the general rule above stated must be cautiously applied in view of the fact that statutes both in England and America have greatly modified the ancient law of valid marriages, and that the legislative tendency is to make marriages voidable rather than void, whenever the impediment is such that it might not have been readily known to both parties before marriage, and where public policy does not rise superior to all considerations of private utility. Modern civilization strongly condemns the harsh doctrine of ab initio sentences of nullity. A definition of voidable and void marriages which will closely fit modern conditions is that a marriage may be considered voidable through prohibited by law when it is possible, under any circumstances, for the parties to contract the marriage, or subsequently to ratify it, while it should be considered void if it is impossible for them under the law to contract it, and if it is impossible for them subsequently by any conduct to ratify it, and if the statute expressly declares that the marriage is void.’ 18 R. C. R., p. 429, Par. 68.

The law, as we have announced in to be at this time, was the law at the time of the three marriages, related before, which have given rise to this cause.

Referring to the facts in the case at bar, it is bound to appear, therefore, that the marriage of Rinnie to Reynolds was not absolutely void, but voidable. This is in accord with the definition of a voidable marriage as laid down by Mr. Bishop. It also harmonizes with the rule as stated in Ruling Case Raw, mentioned above, for it was possible for Rinnie and Reynolds to subsequently ratify the marriage contract which they had undertaken. Under' the common-law rule of force here, she had the right to contract that marriage although not 12 years of age at the time. And Reynolds had the legal right to enter into matrimony with her. When she came to the “age of discretion,” to wit, 12 years, if there had been no consummation of the mar riage by cohabitation, she could have made application to the Court of Common Pleas for an annulment of that voidable contract, and that Court had the power, for proper cause, to set the marriage aside, as pointed out in Davis v. Whitlock, supra.

Since the marriage of Rinnie to Reynolds was not void, it must follow that her marriage to the defendant was void. This view is positively sustained by the provisions of Section 5533 of Volume 3 of the Code, which we have heretofore set forth. That section declares outright that Rinnie’s marriage to the defendant was void if her former husband (Reynolds) was living at the time she contracted the marriage with the defendant, unless Reynolds had been absent for the space of seven years and Rinnie was not aware that he was living during that time, or unless Rinnie had been legally divorced, or unless her marriage to Reynolds had been declared void by the sentence of a competent Court. . Since Reynolds had not been absent for the space of seven years, as there had been no- divorce, and as her marriage had not been declared void by the sentence (decree) of a competent Court, the language of the section, preceding the proviso therein, condemned her-marriage to the defendant for the reason that her former husband, Reynolds,, was living at that time.

It is our opinion that the learned Circuit Judge was confused as to the common-law. distinction between void and voidable marriages, and that he overlooked the statutes to which we have called attention, and therefore, he committed error in both his refusal to direct a verdict, and also in his instructions to the jury.

We are not unmindful of certain conditions which may be brought about because of the conclusions we have reached in this cause. It is true that instances may arise in the future, as they have arisen in the past, that very young girls may contract unfortunate marriages from the bonds of which they would like to escape when a maturer age is reached. It may seem hard to say\ to a girl, who, prior to the age of 12 years, has contracted, in her indiscretion, a matrimonial alliance which will only bring to her tears and sorrow, that she cannot by her own act alone avoid the results of her indiscretion. It may be, too, that the law of this State as to the recognition of marriages of children, within the age of 12 years is not for the best interest of our citizenship. There are strong arguments in favor of both sides of the question. It is not the province of this Court to make law; it is our simple duty to declare the law as made.

If the law, however, is not as we have construed it to be, undoubtedly, worse situations can arise than those pointed out by the distinguished lawyers and learned Judges who have opinions contrary to those expressed by us. If the common-law rule as to the annulment of a marriage, entered into when one or both of the contracting parties is under the age of consent, should be held still in vogue in South Carolina, then, clearly, the right given to the female to declare such marriage at an end must also be recognized when the male seeks to exercise it. Under the view that the common-law right to annul an infant marriage, regardless of whether or not there has been cohabitation, is recognized in this State, the man with “uxorious inclinations” could go through the form of a marriage ceremony with any number of girls from 7 to 12 years of age, “graze” in many “pastures green,” and at his own sweet will cast aside all of his duties and obligations to the child wives with the simple declaration that he had annulled the marriage.

We realize that our view of the law will acquit one whose conduct is far from blameless. It is not proper at this time for us to pass upon the probable guilt of the defendant as to to other violations of the laws of the State in the acts committed by him. The only question for us to determine is his guilt, if any, under the law as to the crime of bigamy, for which he was indicted.

The status of Rinnie Bailey Reynolds, child wife in this cause, has' been well and duly considered. The Court, of course, has hesitated to declare any 'child which may have been born to her of her-marriage to the defendant as illegitimate. To hold otherwise, however, would result in a declaration that any child born to her of Reynolds, or any child born to the defendant and Edith Hewitt, of their marriage, would have to be pronounced as bastards.

Unfortunately, the Court is not in a position to undo the great harm which has been occasioned by the girlish act of Rinnie in marrying at an age so early, when she was so unprepared to realize the privileges, duties, and responsibilities of a contract of matrimony. These unfortunate instances have occurred numerous times in the past; likely, many more of them will come about. We can only hope that the efforts of the State to educate its youth and that the beneficent influences of Christian fathers and mothers, with such aid as the legislative power may be able to give, will, in some good day, make it unnecessary for our Courts to be required to determine the perplexing problems brought into existence by those “who marry in haste to repent at leisure.”

The judgment of this Court is that the judgment of the Court of general sessions of Marlboro County be, and the same is hereby, reversed; and, a^ provided in Rule No. 27 of this Court, a verdict of not guilty is ordered to be entered up in favor of the defendant in the case at bar.

Messrs. Justices Watts and Stabter concur. Mr. Chiee Justice Gary did not participate.