Admissions of the defendant as to the prior marriage, made during cohabitation under such marriage, have been held sufficient evidence of its validity.50 Registry is the best evidence of a foreign marriage,51 but testimony of witnesses may be enough,52 or even proof by cohabitation and recognition, by admissions and conduct, where consensual marriages are recognized,53 but some courts do not recognize this as sufficient proof.54

Divorce should be proved by the record.55

§ 779. Second marriage. The attempted second marriage may be in any form or by any words which would constitute a good marriage, except for the bar of the first marriage. A common-law agreement followed by cohabitation may be sufficient in some states.56 Since the offense consists in appearing to contract a second marriage and thus bringing the other party into marital intercourse, it is not a defense that the second marriage would have been void or voidable on other grounds than bigamy, as where it was fraudulently

50 Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; State v. Seals, 16 Ind. 352; Commonwealth v. Jackson, 11 Bush (Ky.) 679, 21 Am. Rep. 225, 1 Am. Cr. 74; State v. Libby, 44 Maine 469, 69 Am. Dec. 115; Wolverton v. State, 16 Ohio 173, 47 Am. Dec. 373; State v. Moore, 36 Utah 521, 105 Pac. 293, Ann. Cas. 1912A, 284. But see State v. Roswell, 6 Conn. 446.

51 State v. Dooris, 40 Conn. 145; Whart. Crim. L. (11th ed.), § 2042.

52 State v. Kean, 10 N. H. 347, 34 Am. Dec. 162; Wolverton v. State, 16 Ohio 173, 47 Am. Dec. 373; Reg. v. Mainwaring, 7 Cox Cr. C. 192.

53 Miles v. United States, 103 U. S. 304, 26 L. ed. 481; Lowery v. People, 172 Ill. 466, 50 N. E. 165,

64 Am. St. 50, 11 Am. Cr. 169; State v. Wylde, 110 N. Car. 500, 15 S. E. 5; Lee v. State, 44 Tex. Cr. 354, 72 S. W. 1005, 61 L. R. A. 904.

54 Hiler v. People, 156 Ill. 511, 41 N. E. 181, 47 Am. St. 221.

55 State v. Barrow, 31 La. Ann. 691; Commonwealth v. Boyer, 7 Allen (Mass.) 306; State v. Herren, 173 N. Car. 801, 92 S. E. 596 (mere offering by the accused of a decree of divorce from his first wife in another state is not sufficient to establish, ipso facto, the validity of the divorce. The question as to its validity is one of fact for the jury). 56 People V. Mendenhall, Mich. 404, 78 N. W. 325, 75 Am. St. 408; Draughn v. State, 12 Okla. Cr. 479, 158 Pac. 890.

119

performed,

or the parties were within prohibited degrees of kin,58 or that the marriage was one between a negro and a white, prohibited by law,59 or it would have been voidable for a technical defect.60 But the ceremony may be so imperfect, that if not followed by cohabitation, it will not sustain a conviction.61

§ 780. Intent.—A guilty intent is an element of the crime, but an intent to do an act prohibited by law is sufficient, and a religious belief that polygamy is proper is not a defense.62 A mistake of law is not a defense, as we have seen, since an honest belief in the invalidity of a former marriage,63 in the validity of a divorce, does not avail a defendant. It has been held that a bona fide belief that the other party procured a divorce in another state, is a mistake of fact and a defense.65

64

or

English courts hold that a mistaken belief in the death of the first spouse, based on reasonable grounds, is a defense, as this is a mistake of fact.66 Most United States courts are inclined to hold one guilty in such a case, and intent immaterial as in police wrongs.67 It is said that the consequences

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

58 Reg. v. Allen, L. R. 1 C. C. 367, 12 Cox Cr. C. 193.

59 People v. Brown, 34 Mich. 339, 22 Am. Rep. 531.

60 Robinson v. Commonwealth, 6 Bush (Ky.) 309; Carmichael v. State, 12 Ohio St. 553.

61 Kopke v. People, 43 Mich. 41, 4 N. W. 551.

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

65 Squire v. State, 46 Ind. 459.

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

67 Cornett v. Commonwealth, 134 Ky. 613, 121 S. W. 424, 21 Ann. Cas. 399; Commonwealth v. Hayden, 163 Mass. 453, 40 N. E. 846, 28 L. R. A. 318, 47 Am. St. 468; State v. Zichfeld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. 800; State v. Ackerly, 79 Vt. 69, 64 Atl. 450, 118 Am. St. 940, 8 Ann. Cas. 1103. See also Reg. v. Bennett, 14 Cox Cr. C. 45.

to society and the innocent party are so injurious that the law requires positive evidence of death before one contracts a second marriage. Mistaken belief, however, may mitigate the punishment.68

§781. Other defenses.-Actual duress is a defense, but it is not duress that one who seduced a girl married her to escape prosecution.69

The statute of limitations begins to run from the date of the second marriage unless bigamous cohabitation is made a crime.70 Insanity may be a defense.71

§ 782. Polygamy.-At common law the offense now called bigamy was first known as polygamy. Today the terms are practically interchangeable. Congress passed in 1882 the Edmunds Act, which punishes not only marrying more than one woman, but also cohabiting with more than one woman, and holding them out as wives, creating a continuous offense.72

68 Russell v. State, 66 Ark. 185, 49 S. W. 821, 74 Am. St. 78.

69 Medrano v. State, 32 Tex. Cr. 214, 22 S. W. 684, 40 Am. St. 775.

70 State v. Sloan, 55 Iowa 217, 7 N. W. 516; Gise v. Commonwealth,

81 Pa. St. 428. See also note to 93 Am. Dec. 256.

71 Martin v. State, 100 Ark. 189, 139 S. W. 1122.

72 Ex parte Snow, 120 U. S. 274, 30 L. ed. 658; Cannon v. United State, 116 U. S. 55, 29 L. ed. 561.

787. Bastardy.

786. What must be shown to con- 788. Presumption of legitimacyvict. Burden of proof.

§ 785. Definition.-At common law fornication is illict sexual intercourse between a man and an unmarried woman, and was not indictable.1 By the ecclesiastical law any illicit sexual intercourse on the part of an unmarried person was fornication and punishable by ecclesiastical courts.2 By statute in many states fornication is a misdemeanor, in most states the offense being distinguished from adultery because committed by an unmarried person. In Georgia all illicit intercourse is made criminal, it being adultery if both parties are married, adultery and fornication if one only is married, fornication if both are single. The punishable commonlaw offense was that of the habitual living together of a man and woman, neither of whom was married. It is thus seen

1 Richey v. State, 172 Ind. 134, 87 N. E. 1032, 139 Am. St. 352n, 19 Ann. Cas. 654; State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397; Anderson v. Commonwealth, 5 Rand. (Va.) 627, 16 Am. Dec. 776; Reg. v. Pierson, 1 Salk. 382, 2 Ld. Raym. 1197.

2 Richey v. State, 172 Ind. 134, 87 N. E. 1032, 139 Am. St. 362n, 19 Ann. Cǝs. 654; Territory v. Whit

comb, 1 Mont. 359, 25 Am. Rep. 740; State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397; Reg. v. Pierson, 1 Salk. 382, 2 Ld. Raym 1197.

3 Richey v. State, 172 Ind. 134, 87 N. E. 1032, 139 Am. St. 362n, 19 Ann. Cas. 654.

4 Bennett v. State, 103 Ga. 66, 29 S. E. 919, 68 Am. St. 77.

5 Cosgrove v. State, 37 Tex. Cr. 249, 39 S. W. 367, 66 Am. St. 802.

that the common-law distinction between fornication and adultery is that the former is intercourse by a man with an unmarried woman, the latter intercourse by a man with a married woman.

§ 786. What must be shown to convict.-The prosecution must show the parties are not married to each other. Illicit intercourse must be shown in the same manner as in adultery. The proof must make a case under the particular

statute.

8

§ 787. Bastardy.-Under statutes in most states, there is a proceeding in the name of the state, instituted by the mother of a bastard child to compel the putative father to support it. These proceedings are in their nature more civil than criminal. In some states bastardy is punishable together with fornication, and it has been said that bastardy is a misdemeanor at common law, the offense being complete when a child is begotten.10 The prosecuting witness in bastardy proceedings is a party to the proceedings.11 The mother of a bastard child may compromise and settle with the reputed father her claim for damages against him, but to preclude the prosecution of a bastardy proceeding the contract must be fair, free from fraud, and founded upon a sufficient consideration.12 In a bastardy proceeding the

6 Territory v. Whitcomb, 1 Mont. 359, 25 Am. Rep. 740.

7 State v. Addington, 143 N. Car. 683, 57 S. E. 398, 11 Ann. Cas. 314n; People v. Wunsch, 198 Ill. App. 437 (a bastardy proceeding is criminal in form but civil in effect). See also, Cogburn v. State (Ala. App.), 76 So. 473; State v. Waltermath, 162 Wis. 602, 156 N. W. 946.

8 Gorman v. Commonwealth, 124 Pa. St. 536, 17 Atl. 26. In Alabama, upon a conviction of bastardy, the

court may sentence the defendant to 12 months imprisonment at hard labor for the county. Grace v. State (Ala. App.), 77 So. 978.

9 Coleman v. Frum, 8 Scam. (Ill.) 378; State v. Phelps, 9 Md. 21.

10 Sheay v. State, 74 Md. 52, 21 Atl. 607; State v. Wynne, 116 N. Car. 981, 21 S. E. 35.

11 People V. Kirby, 199 IL App. 91.

12 Burr v. Phares (W. Va.), 94 S. E. 30.