Proof that the parties lived together and held themselves out as husband and wife and had children born to them is sufficient in some states,11 and insufficient in others. It is usually sufficient to show a marriage prima facie valid.12 Where residents of a state whose marriage would there be illegal, are married in another state, that fact alone does not render the marriage illegal in the state of their residence, so that a subsequent marriage there is not bigamous.13 Where statutes prescribing the form of marriage merely impose punishment for noncompliance with the form and do not make the marriage illegal, a second marriage by one of the parties is bigamy.1

14

The prior marriage must be proved beyond a reasonable doubt in a prosecution for bigamy, and the presumption in favor of marriage and the legitimacy of children, which arises when the question concerns the distribution of an estate, is very much weakened and overcome by conflicting presumptions, among them that of innocence, and of the validity of the second marriage.15

§ 774. Voidable prior marriage.—It is no defense that the prior marriage was voidable, if it had not been avoided prior to the second marriage, for a voidable marriage subsists until avoided.16 So if one of the parties was under the age of consent and has not avoided the marriage, a subsequent mar

11 State v. Gonce, 79 Mo. 600, 4 Am. Cr..68. But see Hiler v. People, 156 Ill. 511, 41 N. E. 181, 47 Am. St. 221.

12 Murphy v. State, 50 Ga. 150; Taylor v. State, 52 Miss. 84, 2 Am. Cr. 13; State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754; Rex V. Hind, Russ. & Ry. 253.

13 Commonwealth v. Lane, 113 Mass. 458, 18 Am. Rep. 509.

14 Robinson v. Commonwealth, 6 Bush (Ky.) 309; State v. Parker,

106 N. Car. 711, 11 S. E. 517; Carmichael v. State, 12 Ohio St. 553.

15 Whart. Crim. L. (11th ed.) § 2028. See also State v. McClelland, 152 Iowa 704, 133 N. W. 111; Morville v. State, 63 Tex. Cr. 553, 141 S. W. 102; Bryan v. State, 63 Tex. Cr. 200, 139 S. W. 981.

16 Cooley v. State, 55 Ala. 162; People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; State v. Cone, 86 Wis. 498, 87 N. W. 50; 1 East P. C. 466.

riage by the other party is bigamous.17 If the party under age subsequently marries before the former marriage became binding, such subsequent marriage annuls the former and is not bigamous.18 And where a marriage by parties under age of consent is made valid only when they cohabit after becoming of age, a second marriage is not bigamous unless such cohabitation is shown.19 If a marriage ceremony performed without license or with a void license is followed by cohabitation, it is so far validated, as to form a foundation for a bigamy prosecution.20 Nor is fraud in the previous marriage a good defense to the charge of bigamy, if the parties later lived together as husband and wife.21

§ 775. Void previous marriage. It is a complete defense to a charge of bigamy that the prior marriage was absolutely void. 22 So where a statute makes void a marriage with a deceased wife's sister, a subsequent marriage is not bigamous.23 If the ceremony is performed without license or proper ceremonies and is not followed by cohabitation, then a subsequent marriage by one of the parties is not bigamous.24 So where one contracts a bigamous second marriage, and subsequently the first marriage is dissolved by death or divorce, and he marries a third time, the third marriage is not bigamous, since the second one was void.25 If the second wife was recognized after the termination of the first marriage, then

17 Cooley v. State, 55 Ala. 162; Walls v. State, 32 Ark. 565; People v. Beevers, 99 Cal. 286, 33 Pac. 844; People v. Slack, 15 Mich. 193.

18 Shafher v. State, 20 Ohio 1. 19 People v. Bennett, 39 Mich. 208.

20 People v. McQuaid, 85 Mich. 123, 48 N. W. 161. See also note to 126 Am. St. 215, 216, 217.

21 Hayes v. People, 25 N. Y. 390, 24 How. Pr. 452, 5 Park Cr. 325, 82 Am. Dec. 364.

22 People v. McQuaid, 85 Mich. 123, 48 N. W. 161; Shafher v. State, 20 Ohio 1; Sunderland's Case, 2 Lewin 111.

23 Reg. v. Chadwick, 11 Q. B. 205, 2 Cox Cr. C. 381.

24 People v. McQuaid, 85 Mich. 123, 48 N. W. 161; Weinberg v. State, 25 Wis. 370.

25 Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; People v. Chase, 27 Hun (N. Y.) 256.

in some jurisdictions he could be convicted of bigamy in the third marriage.26 In many jurisdictions a consensual marriage is held invalid, and proof of such marriage will not support a conviction of bigamy.27 Mistake in believing a prior marriage invalid is a mistake of law and not a defense.28

§ 776. Divorce from first marriage.—If the prior marriage was terminated prior to the date of the second by a divorce which in the state of the former would entitle the defendant to remarry, the second marriage is not bigamous.29 Generally speaking, a divorce valid as to one of the parties terminates the marriage as to the other and should be recognized everywhere.30 But if one is indicted in one state for marrying a second time in that state and his first wife is alive, it is not a defense that he was divorced from her in another state unless such divorce is valid in the state of the former.31 Where a statute prohibits the party for whose fault the divorce was granted from marrying again, his second marriage in that state will not be bigamous unless so declared by statute.32 Nor is it bigamy for him to remarry in another state unless he does so merely to avoid the laws of the state in which he resides.33 If a divorce decree is invalid for want of jurisdiction of the court which rendered it, it is no defense to a charge of bigamy.34 According to the weight of author

26 Hayes v. People, 25 N. Y. 390, 24 How. Pr. 452, 5 Park Cr. 325, 82 Am. Dec. 364.

27 Denison v. Denison, 35 Md. 361.

28 Staley v. State, 89 Nebr. 701, 131 N. W. 1028, 34 L. R. A. (N. S.) 613.

29 State v. Weatherby, 43 Maine 258, 69 Am. Dec. 59; Baker v. People, 2 Hill (N. Y.) 325; Lolley's Case, 2 Clark & F. 567.

30 People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274.

Whart. Crim. L. (11th ed.), § 2026. See also People v. Faber, 92 N. Y. 146, 1 N. Y. Cr. 115, 44 Am. Rep. 357.

32 Commonwealth v. Richardson, 126 Mass. 34, 30 Am. Rep. 647; Crawford v. State, 73 Miss. 172, 18 So. 848, 35 L. R. A. 224.

33 Commonwealth v. Lane, 113 Mass. 458, 18 Am. Rep. 509.

34 Tucker v. People, 122 Ill. 583, 13 N. E. 809; Davis v. Commonwealth, 13 Bush (Ky.) 318; Van Fossen v. State, 37 Ohio St. 317.

ity the fact that one believed in good faith he had been lawfully divorced from his first wife, when in fact he had not, is no defense.35 The statute requires persons who have been married to know that the first marriage has been terminated before entering into another. A divorce from the first marriage obtained after the second marriage, is no defense.36

§ 777. Death of former spouse-Proof and presumptions. -Most statutes exempt from prosecution for bigamy a marriage where the first spouse has been absent seven years and the other has no knowledge of the absent one being alive during that time. This exception is a part of the common law.37 The prosecution must therefore prove that the first spouse was alive at the time of the second marriage. If the proof shows such spouse alive within less than seven years before the second marriage, then the question becomes one of fact for the jury and there may be presumptions of fact which will overcome that of continuance of life, as where when last heard of the spouse was mortally ill, and the intervening time has been such that the presumption of innocence may prevail.38 After seven years' absence the prosecution must prove not only that the first spouse was alive within that period, but that the defendant had knowledge of that fact.39

35 Russell v. State, 66 Ark. 185, 49 S. W. 821, 74 Am. St. 78; People v. Spoor, 235 I11. 230, 85 N. E. 207, 126 Am. St. 197, 14 Ann. Cas. 638; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, 2 Am. Cr. 165; Rex v. Brinkley, 14 Ont. L. R. 434, 10 Ann. Cas. 407, note.

36 Baker v. People, 2 Hill (N. Y.) 325.

37 Eubanks v. Banks, 34 Ga. 407; Barber v. State, 50 Md. 161.

38 Whart. Crim. L. (11th ed.),

§ 2048. See also People v. Fellen, 58 Cal. 218, 41 Am. Rep. 258; Squire v. State, 46 Ind. 459; Commonwealth v. McGrath, 140 Mass. 296, 6 N. E. 515; Dunlap v. State, 126 Tenn. 415, 150 S. W. 86, 41 L. R. A. (N. S.) 1061, Ann. Cas. 1913E, 264n; Reg. v. Lumley, L. R. 1 C. C. 196, 11 Cox Cr. C. 274.

39 Reg. v. Dane, 1 Fost. & F. 323; Reg. v. Curgenwen, L. R. 1 C. C. 1, 10 Cox Cr. C. 152.

40

Continuous absence for the statutory period without knowledge on the part of the other spouse, is a complete defense." An honest belief in the death of the other party has often been held not a defense,11 but some cases hold that it is, if based on reasonable grounds.42

§ 778. Proof of marriage or divorce.—We have stated that in a bigamy prosecution marriage must be proved beyond a reasonable doubt. In many jurisdictions this must be done by direct evidence.43 In some jurisdictions proof of cohabitation and a holding out as husband and wife is sufficient.** An official certificate of the record is usually sufficient evidence, with identification of the parties.16 Marriage may also be proved by the testimony of a witness present at the ceremony, and the one who performed the ceremony or the party to the bigamous marriage may testify.48

47

It seems to be the present controlling rule that proof of a marriage in fact in another state, followed by cohabitation, is sufficient, without further proof as to its validity.49

40 People v. Spoor, 235 Ill. 230, 85 N. E. 207, 126 Am. St. 197, 14 Ann. Cas. 638.

41 Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2; Reynolds v. State, 58 Nebr. 49, 78 N. W. 483, 11 Am. Cr. 159; State v. Ackerly, 79 Vt. 69, 64 Atl. 450, 118 Am. St. 940, 8 Ann. Cas. 1103; Reg. v. Bennett, 14 Cox Cr. C. 45.

42 Reg. v. Tolson, L. R. 23 Q. B. Div. 168, 16 Cox Cr. C. 629, 8 Am. Cr. 59, 8 Eng. Rul. Cas. 16.

43 Green v. State, 21 Fla. 403, 58 Am. Rep. 670; Lowery v. People, 172 I. 466, 50 N. E. 165, 64 Am. St. 50; Rogers v. State Tex. Cr.), 204 S. W. 222.

44 Bynon v. State, 117 Ala. 80, 23 So. 640, 67 Am. St. 163; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State v. Gonce, 79 Mo. 600, 4

Am. Cr. 68; Dumas v. State, 14
Tex. App. 464, 46 Am. Rep. 241.

45 Commonwealth v. Hayden, 163 Mass. 453, 40 N. E. 846, 28 L. R. A. 318, 47 Am. St. 468; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; Whart. Crim. Ev., §§ 169 et seq.; Whart. Crim. L. (11th ed.), §§ 20382041.

46 Reg. v. Hawes, 1 Den. 270; Reg. v. Tolson, 4 Fost. & F. 103.

47 State v. Williams, 20 Iowa 98; Commonwealth v. Dill, 156 Mass. 226, 30 N. E. 1016.

48 Commonwealth v. Hayden, 163 Mass. 453, 40 N. E. 846, 28 L. R. A. 318, 47 Am. St. 468.

49 Miles v. United States, 103 U. S. 304, 26 L. ed. 481; Dale v. State, 88 Ga. 552, 15 S. E. 287; Whart. Crim. L. (11th ed.), §§ 2028-2038.