CASES ARGUED AND DETERMINED IN THE Supreme Court of Ohio, IN BANK. DECEMBER TERM, 1851. PRESENT: HON. PETER HITCHCOCK, CHIEF JUSTICE. HON. RUFUS P. SPAULDING, HON. WILLIAM B. CALDWELL, HON. RUFUS P. RANNEY, JUDGES. JOSEPH MCCORMICK, ATTORNEY-GENERAL. WILLIAM LAWRENCE, REPORTER. JOHN H. SHAFHER V. THE STATE OF OHIO. 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. 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 VOL. XX-1 Shafher v. The State of Ohio. county, the plaintiff in error was indicted for the crime of big amy. He was charged with having married one Elizabeth Emerick, 2] *on March 9, 1848, and while she was still living, on March 15, 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 exceptions 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 part gave evidence tending to prove that he was but sixteen years of age on May 26th 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 the 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 act or declarations, 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." 3] *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. Shaf her v. The State of Ohio. W. H. BALDWIN, for the plaintiff in error. 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 (Swan's Stat. 230, sec. 7) 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 indispensable step to be taken by the prosecution is, to establish the fact that the person prosecuted is a "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. Arch. Crim. Pl. 476. 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" (Swan's Stat. 582), passed January 6, 1824, provides, "That male persons of the age of eighteen years, and 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 [4 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 in males and twelve |