Commonwealth v. Ross

Crosby, J. This is an indictment for polygamy. At the trial the case was submitted to the jury on the following agreed facts: The defendant, under the name of John Rosbrough, was married on February 5, 1905, at Boston, to Bessie Robinson, who obtained a divorce from him in Chicago in the year 1911; they were remarried at Louisville, Kentucky, in 1912 and lived together for a short time. The defendant was married to Gertrude Traynor on January 11, 1916; they lived together as husband and wife in Boston until some time in August, 1922, when she learned of his previous marriage to Bessie Robinson and left him, [18] and has not since lived with him. Bessie Robinson obtained a divorce from him in Texas on March 14, 1918. Under the laws of that State either party is free to remarry after the final decree is entered. The foregoing is all the evidence submitted. The defendant filed a written motion that a verdict of not guilty be directed in his favor; this motion was denied and the defendant excepted. He also excepted to the refusal of the court to give certain requests for instructions; to the ruling that the divorce granted to-Bessie Robinson was not a defence; and to the direction to the jury that a verdict of guilty should be returned. The indictment charges the crime set forth in G. L. c. 272, § 15, that the defendant “ having a lawful wife living, to wit: Bessie Robinson Rosbrough, did at Boston, unlawfully marry and have for his wife one Gertrude Traynor, after which the said John Robert Ross . . . did while said Bessie Robinson Rosbrough was still living, during the six years next before the finding of this indictment, unlawfully cohabit and continue to cohabit in said Boston with the said Gertrude Traynor.” The indictment was found in November, 1922, and is drawn in conformity with the second form contained in the schedule of forms of pleading under the heading “ Polygamy” in G. L. c. 277, § 79. The contention of the defendant that he was entitled to have a verdict of not guilty returned on the ground that the second marriage charged was entered into more than six years before the finding and return of the indictment, cannot be sustained. G. L. c. 272, § 15, provides that “ Whoever, having a former husband or wife living, marries another person or continues to cohabit with a second husband or wife in the Commonwealth shall be guilty of polygamy. ...” The circumstance that the second marriage was entered into more than six years before the indictment was found is immaterial, as it appears that the defendant continued thereafter to cohabit with the second wife in this Commonwealth, and within six years before the finding of the indictment. The contention that the defendant is not guilty by reason of St. 1895, c. 427, as amended by St. 1896, c. 499, now G. L. [19] c. 207, § 6, is without merit. That statute was not intended by the Legislature to repeal or modify the statute making polygamy a criminal offence. The purpose of G. L. c. 207, § 6, is to provide against the illegitimacy of children and to protect the public interests. Turner v. Turner, 189 Mass. 373, 375. Green v. Kelley, 228 Mass. 602. Gardner v. Gardner, 232 Mass. 253, 258. The motion for a directed verdict and the requests for instructions were rightly denied. As the case was submitted on agreed facts, and as no question of law was involved, the action of the court in directing a verdict of guilty was without error. Commonwealth v. Gardner, 241 Mass. 86, 91. Exceptions overruled.