The opinion
On Mandate of Supreme Court.
By the statute, Acts 1911, p. 95, § 10, it is provided that the decisions of the Supreme Court of Alabama shall govern the holdings and the decisions of this court, etc. As a result of this statutory provision we perforce must hold, in view of the decision by that court in this case, that the judgment of conviction appealed from must be affirmed.
As stated, in the original opinion of this court, the indictment charged that this appellant having a wife then living, unlawfully married one Pernie Baker, etc. If would seem that under the elementary rules of evidence if it appeared upon the trial of the case, from the testimony, that the defendant at the time of contracting the marriage with Pernie Baker had no wife then living, it would be conclusive of the case and that the prosecution must of necessity fall. It is without dispute that this appellant was granted an absolute decree of divorce by a court of competent jurisdiction, from his former wife, Minnie Vance, some days prior to the date upon which he contracted the marriage with Pernie Baker. By the terms of the decree of divorce it was adjudged and decreed that he should not marry again except to said Minnie Vance (former wife from whom the divorce was granted) until 60 days after the date of the decree of divorce. The decree also provided:
"And if an appeal is taken within sixty days then he shall not marry again except to said Minnie Vance during the pendency of the appeal."
It does seem that if Minnie Vance was still the living wife of appellant, notwithstanding the decree of absolute divorce, and this is of necessity the effect of the holding by the Supreme Court, for otherwise this material averment in the indictment would fail for want of proof, an anomaly is presented by the requirement if he marry at all within 60 days he must marry a woman already his lawful living wife. In other words, if she was already his wife, by what provision of law or custom could he marry her again; and, on the other hand, if she was not his wife, then the prosecution, if she was not his wife, then the prosecution falls, as "having a wife then living" is the material, in fact the vital, ingredient of the offense charged.
Under the terms of the statute, Acts 1911, p. 95, § 10, the judgment of conviction appealed from is affirmed upon the authority of Ex parte State ex rel. Atty. Gen. in re Vance v. State, 210 Ala. 9 , 97 So. 230 .
Affirmed.