It was necessary to aver in the indictment, and to prove upon the trial, that the defendant was single and unmarried; for the meaning of the term "fornication" is the carnal and illicit intercourse of an unmarried person with the opposite sex. It is impossible for a married man and a married woman to commit fornication. Unlawful sexual intercourse, an open and unlawful living together of a married man and married woman, or where either are married, and thus have intercourse or live together, is adultery; and the same state of facts existing between unmarried persons, man and woman, is fornication. We have carefully examined the record of evidence and testimony in this case, and we find that, upon the trial of this case, there was no testimony offered or received, showing, or tending to show, that these defendants were not married at the time the crime is alleged to have been committed. If they were living together in an open and notorious manner, it would be a reasonable presumption to presume that they were so living lawfully and as they had a right to do, and, in the absence of any proof to show that they were unmarried, a conviction for fornication ought to be impossible. Even the married condition of either of the parties would change the nature of the crime, so that the married or unmarried condition of these defendants, or either of them, was a most material inquiry upon the trial, and the absence of any proof upon the subject renders a conviction legally impossible. The foregoing instruction asked for and given on behalf of the prosecution, is inherently wrong. It will be observed, that it authorizes the jury to form an opinion as to the married or unmarried condition of the defendants, from their own knowledge and belief, in the absence of any testimony on the subject. It is an old and familiar doctrine that juries must have or form no belief, except what they believe from the testimony produced before them at the trial. Any other rule would destroy this guardian of our right and liberties — the trial by jury. The jury must believe from the testimony, legally produced before them in open court, and from that alone, and any instruction of the court that permits the private belief or private knowledge of a juryman to sway his findings or his judgment, is wrong and beyond remedy. The judgment of the court below is set aside, and a new trial granted. BIGAMY-VOID FIRST MARRIAGE. SHAFHER v. STATE. [20 Ohio, 1.] In the Supreme Court of Ohio, 1851. 1 Marriages in this State, contracted by male persons under the age of eighteen, and female persons under fourteen, are invalid unless confirmed by cohabitation after arriving at those ages respectively. 2. Such a Marriage not thus confirmed, does not subject a party to punishment for bigamy, for contracting a subsequent marriage while the first husband or wife is living. Error to the Common Pleas of Warren County. At the July term, 1850, of the Court of Common Pleas of Warren County, the plaintiff in error was indicted for the crime of bigamy. He was charged with having married one Elizabeth Emerick, on the 9th day of March, 1848, and while she was still living, on the 15th day of March, 1850, with having again married one Amanda Fitz. To this indictment he pleaded not guilty, and on trial at the October term of the court, for the same year, he was found guilty, and a motion for a new trial having been overruled, was sentenced to three years' imprisonment in the penitentiary. At his instance a bill of exception was signed and sealed by the judges, and made part of the record, upon which all the questions presented in this case arise. By that it appears that "after the prosecution had given evidence of the two marriages, as charged in the indictment, the defendant on his gave part evidence tending to prove that he was but sixteen years of age on the 26th of May following the first marriage, which took place with the consent of his father, and that he was eighteen years of age in May following the second marriage; and that at the time he arrived at that age, he was living and cohabiting with his second wife, and within eight or ten miles of the residence of the first one." His counsel then requested the court to instruct the jury that if they were satisfied that he was under the age of eighteen years at the time of his first marriage, such marriage would be void; or if not void ab initio, but merely voidable, that it would become absolutely void, unless affirmed by cohabitation, after arriving at that age." This instruction the court refused to give, but did charge the jury that "if he was married under the age of eighteen, and lived with his wife until near that age, he could not marry again without disaffirming that marriage, and that to do so on arriving at the age of eighteen, or within a reasonable time after, he must notify the first wife, by acts of declaration, of such disaffirmance, that the contract was at an end, and that he would no longer be bound by it; and that such disaffirmance must be before another marriage; and further, that the mere fact that he had left the first wife, and without her knowledge married another, with whom he lived and cohabited, would not amount to a disaffirmance of the first contract." Exception was taken to the refusal to charge as requested, and to the charge as given. Errors assigned; that the court refused to charge as requested, and that the charge as given was improper. W. H. Baldwin, for the plaintiff in error. J. McCormick, AttorneyGeneral, for the State. The cause was submitted without argument. RANNEY, J. The main question arising in this case is, was the action of the Court of Common Pleas erroneous? It is one of considerable importance and some difficulty. We have not been favored with an argument on either side, and are obliged to decide from the best lights that a limited examination of the books can give us. The act upon which this indictment is predicated,1 provides "that if any married person, having a husband or wife living, shall marry any other person," every such person, on conviction, shall be imprisoned in the penitentiary not more than seven nor less than one year." The first ndispensable step to be taken by the prosecution is, to establish the fact that the person prosecuted is a 66 married person," and "has a husband or wife living." To do this a valid marriage in fact must be shown. The law will not presume it as it will in civil cases.2 The question arising upon this record may be thus stated: Can a male person under the age of eighteen, or a female person under the age of fourteen years, contract a valid marriage in this State? To answer this question we must first resort to our own statute laws. The first section of the "Act regulating Marriages," 3 passed January 6, 1824, provides "that male persons of the age of eighteen years, female persons of the age of fourteen years, not nearer of kin than first cousins, and not having a husband or wife living, may be joined in marriage." The last part of the section provides that between these ages and the ages of twenty-one and eighteen respectively, the consent of the parents or guardians shall first be obtained. Although the marriage relation has its foundation in nature, and is indispensable to the moral improvement and happiness of mankind, a great variety is found to exist in the municipal regulations of civilized States as to the age at which it may be lawfully entered into. Nature has fixed no precise period, and each State must, for itself, by fixed and reasonable rules, regulate the matter with regard to its own peculiar circumstances. The common law, as is well known, borrowed from the Roman Law, fixed the age at fourteen 1 Swan's Stat., p. 230, sec. 7. 2 Arch Cr. Pl. 476. 3 Swan's Stat. 582. in males, and twelve in females. The Code Napoleon fixed it at eighteen in males, and fifteen in females. In some of the States of this Union the common-law rule prevails, and in others it is regulated by statute. In Massachusetts and Illinois it is fixed at seventeen in males, and fourteen in females, but marriages contracted below that age are rendered valid if followed by voluntary cohabitation. Michigan and Indiana follow the provisions of our own law. This diversity of regulation is not, in all cases, accidental. Nature herself, in many cases, demands such variation. An age that would be right and proper in Spain and Italy, would not be adapted to Norway and Sweden. A state of society and a system of policy that makes marriage in many cases a convenient means of controlling estates, and confining property in particular channels, as in Great Britain, is best subserved by allowing marriages at a period of life when parental influence and authority is not likely to be overcome by the strong current of affections and independence incident to maturer years. But such a regulation would be poorly adapted to a state of society like our own, where no such policy is to be promoted; where fidelity to the marriage vow has all the sanctity of a religious sentiment, and where all experience has shown that the blessings of the marriage relation can only be realized when entered into with the utmost freedom of choice, and between persons of matured judgment and discretion. Although our statute differs from the common law in fixing the age at which this contract can be made, still, as it is entirely silent as to the effect of an attempt to enter into it before the period presented, we must resort to the exposition of the common law upon that point; and judicial determinations, and the opinion of jurists under that system are strictly applicable. Blackstone, in his Commentaries,1 has treated this subject with his usual clearness and force. In discussing the question how marriages may be contracted, and after remarking that the law regards them in no other light than as a civil contract, and that all persons willing and able to contract may enter into them, he proceeds to say that "in general all persons are able to contract themselves in marriage, unless they labor under some particular disabilities and incapacities." These disabilities are of two sorts, canonical and civil. In relation to the first he says: "These in our land only maké the marriage voidable, and not ipso facto void, until sentence of nullity be obtained." In relation to the last he remarks: "These civil disabilities make the contract void ab initio, and not merely voidable; not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all; they do not put asunder those who are joined together, but they previously hinder the junction. And if any persons, under these legal incapacities, come together, it is a meretricious, and not a matrimonial, union.” He then enumerates these legal disabilities that make the contract void. The first is prior marriage. He then proceeds to say: "The next legal disability is that of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties con tracting; a fortiori, therefore, it ought to avoid this the most important contract of any." Therefore, if a boy under fourteen, or a girl under twelve years of age marries, this marriage is only inchoate and imperfect, and when either of them comes to the age of consent, aforesaid, they may disagree and declare the marriage void without any divorce or sentence in the spiritual court. "Although," he continues to say, "if at age of consent they agree to continue together, they need not be married again." He says: 66 No per Chancellor Kent1 states substantially the same. sons are capable of binding themselves in marriage, until they have arrived at the age of consent. Marriage before that age is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age, when the contract is made.” Judge Reeve, in speaking of such contracts says: "Such a contract I apprehend is void, upon the principle that it is a contract against sound policy and contra bonus mores.' Wharton, in his treatise on Criminal Law,3 says: "If a boy under fourteen, or a girl under twelve, contract matrimony, it is void, unless both husband and wife consent to confirm the marriage after the minor arrives at the age of consent." 4 We think these authorities very conclusively show that the contract of marriage when entered into by a person under the age fixed by law, is void, as well for the want of capacity in the infant to make it, as being opposed to sound policy and the positive requirements of the land. And while it is possible that an occasional case may arise, in which precocious villainy may escape merited punishment, we should remember on the other hand, that it might as often happens that a different holding would place inexperienced and thoughtless youth irretrievably in the power of cunning, crafty and interested persons of maturer years. For our law furnishes no method of obtaining a judicial sentence for annulling such a marriage; unless the parties have the means of escape. in their own hands, none exist. To admit the right, and deny the power to make it available, would amount to little less than an absurdity. The court refused to charge that such a marriage would be void 1 2 Com. 78. See, also, Poynter on Marriage and Divorce, p. 154; Archb. Cr. Pl. 477; Co. Lit. 79; Rex v. Gordon, Eng. Crown Cases, 48. |