Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-09-16

Daily OlaiOa& 3msrifaa
0FFICIAL.


81 tennessee. delivered Al , &C .A'''l1' AZ
April Term, 1858.
Tq;stIf !. sIad fer divorce upon the ground that
The defendant has been convicted Of the crime OF
fsrverv. b the stateOf Kentucky and is now con-
fned IN the Penitentisry, under sentence Of
Court Of that State.
Couviction, with punishment for crime, Was not I
ground for divorce until 1912, when our Legislature
made Il So by the following enactment chapter l5S,
sec. 8, MOS RER ,l49; -.. s....-
'sTbat if any person, being husband or wife, has
been shall be convicted Of any crime, which by
the laws Of this State, is declared to be felony
and sentenced to confinement in the PenitentiaTy,
the same shall be good canse of dlvosee from me
bonds Of metrimony; and If such convict shall, u
the time Of the exhibition OF bill tor divorce IN
der this section, be confined in the Penitenuary' ts
complainant may make publication and BRING me
cause to trial as in Of non-resdents FTo01qea
Thstthe proaf Of such conviction and sentence shaA
be the record Of the Court, in which the proceed
ings were had" -
The record from the Kentucky Court is exnIoIteq'
and establishes the fact charged and the only ques
ton is whether the act Of 1912 extends 70 case Of
conviction and confinement in any other stare OF IS
limited to our own State We are relucianlly Gun
strained 10 hold upon fair construction OF the sot,
that it can only be made to apply to conviction Oh
There can be no good reason Why the provision
should net be enlarged to embrace OtherStates,
ss the odiUm and disgrace Of the offender is the
same, whether the condemnation and punishment
are in one State another. But We must decide
according to the intention Of the Legislature as it is
evidenced by the language used, and not upon our
opinion as 70 what they should have done, even up
on the and principles they have recognized
in the enactment made. To explain; although We
may be satisfied that the same reason upon Whlch
the confinement In the PeniteRtiaTy of the State
should be good ground of divorce would extend to
the same punishment in any other State yet the act
could not be so enlarged against the Legislative in
feutiOu 10 be derived from the language employed.
1t would seem singular that the act had not been
made explicit one way the other, as it would only
have required word TO restrict or enlarge II; but
in this in many other cases we have to contend
with difficulties in the construction Of vague and
csrelessy written acts Therule is, that the inten
ton of the Law makers must prevail, and that we
can only look 10 what is written TO get at that
What did they intend BY this act? The crime must
be such as is declared by the Jaw Of his State" to
be felony Then if party be in the Penitentary
Of another State, for offence that is not felony
By our laws itwould be no glound Of divorce, Why
not if that act was intended Oapply to convictions
in other States, and the reason Of the provision is
the prostraon Of character which results from this
particular mode of punishment! And it might be
further asked, if the enlarged application was in
tended, why 8 conviction of crime in State where
by the local law would be cropping and Whipping
or branding for the same crime, was not embraced
AsWel as the PenitentiaTy mode Of punishment. The
reference Il
fslones strongly indicates that the intention was to
conform the act TO cases in jurisdiction or
at least that foreign cases were not in the mind Of
the lawmakers.
The crime in this is felony by our law and
so it is by the laws Of Ky, and is punshsbleby
fnement in the PenitentisTy in beth States. But
suppose the same crime had been committed in an
other State where the offense is only misdemean-
or, or if felony punishable by pillory the lash,
il could not be eentended the act would apply il
requires that the party must be 'senteneed to
fnement in the PsnitentiaTy" To this absurdiiy,
the construction commended for lead if adopted
4 strong eorrebative argument is to be found in
the provision made for bringing the cause to hear
ing. Why provide specially for publication as in
cases Of nOn>residents where ''such convict SHALL
at the time Of the exhibition of the bill be confined
in the PenientisTy," if the act intended to EN-
brace foreign oouviots? If they were already non
residents by occupying the PenitenGary of another
State there would be no use for the provision It
was evidently intended to remedy the difficulty Of
serving process personally on convict in State
prison, by publies ion as cases Of residents
We think the reason and policy which dictated
this act, would require its enlargement as TO ex
tend 10 cases Of conviction of felony in any other
State or country but that must be done by the Leg
islature, and not the Courts
The decree must be affirmed. CARUTERs
Test: NJ D. WELCH, Clerk & Master.