COMMONWEALTH vs. HARRY SHAMAN.
Non-support. Husband and Wife. Judgment.
It is no defence to a complaint under St. 1911, c. 456, § 1, for refusing to provide for the support and maintenance of the complainant as the defendant's wife, that the defendant was induced to marry the complainant by her false representations that she was chaste.
A decree dismissing a libel by a husband under R. L. c. 151, § 11, for annulling his marriage establishes the status of husband and wife and cannot be attacked collaterally by the husband in his attempted defence to a complaint against him under St. 1911, c. 456, § 1, for refusing to provide for the support of his wife.
BRALEY, J. The St. of 1911, c. 456, § 1, for the violation of which the defendant has been convicted, provides, that "any husband who unreasonably neglects or refuses to provide for the support and maintenance of his wife or minor child or children . . . shall be guilty of a crime, and on conviction thereof shall be punished by a fine not exceeding two hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment."
The defendant contends, the conviction should be reversed because his offer of proof, that he was induced to marry the complainant through her false representations that she was chaste, was erroneously excluded. But, having been content to take her word, the defendant made no preliminary investigation, and her mere antenuptial unchastity furnished no ground for annulment of the marriage, which was valid, even if the parties have never lived together as husband and wife. Reynolds v. Reynolds, 3 Allen 605, 608. Franklin v. Franklin, 154 Mass. 515.
The decree moreover dismissing the defendant's libel for annulling the marriage brought under R. L. c. 151, § 11, [Note p62] established the
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status of husband and wife and cannot be attacked collaterally. Coe v. Hill, 201 Mass. 15. Weld v. Clarke, 209 Mass. 9, 12.
The judge [Note p63] therefore correctly ruled, that only evidence of her conduct since the marriage was admissible in justification of the defendant's failure to support the complainant.
Exceptions overruled.
The case was submitted on briefs.
J. S. Spencer & N. Golden, for the defendant.
A. C. Webber, Assistant District Attorney, for the Commonwealth.
FOOTNOTES
[Note p62] The defendant as a part of his offer of proof, offered the following memorandum filed by the judge who made the decree dismissing the libel for annulling the marriage: "Before the marriage contract between the parties was entered into the libellee represented herself as chaste. In truth she was unchaste and had borne an illegitimate child which died before she became acquainted with the libellant. A marriage ceremony was performed between the parties by a justice of the peace. The libellant knew that this ceremony was valid and was under no apprehension or mistake concerning it. It was intended, however, that a religious ceremony according to the rites of their faith should be performed later. Before the observance of that ceremony the libellant discovered the unchastity of the libellee and brought this libel. He has never had sexual intercourse with the libellee. I rule that the libel cannot be maintained."
[Note p63] Callahan, J.