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for bigamy the first marriage may be proved by cohabitation and the confessions of the prisoner; and such evidence, if full and satisfactory, is sufficient to authorize a conviction without the production of the records or the testimony of a witness who was present at the ceremony.

It was held in England and in some of the states of this Union that evidence of declarations as to a former marriage was competent in the trial of an indictment for bigamy against the party making them. Miles v. United States, 103 U. S. 304, 26 L. ed. 481.

But in New York it has been held that such evidence was not sufficient in a prosecution for bigamy, to establish a marriage even against the party making the admissions. People v. Humphrey, 7 Johns. 314; Gahagan v. People, 1 Park. Crim. Rep. 378. The court in the latter case held them admissible to corroborate the proof of the actual marriage.

§ 514. General Reputation and Cohabitation as Proof of Marriage. It appears to us to be well settled from many authorities that general reputation, cohabitation, and admissions or confessions of the party are all admissible evidence of the fact of the first marriage. General reputation alone is insufficient, but taken in connection with cohabitation and admission, is competent evidence to establish a prima facie case sufficient to sustain a verdict and judgment of conviction for bigamy. Whenever such evidence establishes, in the minds of the jury, beyond a reasonable doubt, the existence of the fact of a valid first marriage, then it is sufficient in that regard to sustain a verdict and judgment for bigamy. A valid marriage must be proven, and if such evidence is relied upon it must establish the existence of a valid marriage to the satisfaction of the jury beyond a reasonable doubt.

In Miles v. United States, 103 U. S. 304, 26 L. ed. 481, where it is held, approving Reg. v. Simmonsto, 1 Car. & K. 164, that "on an indictment for bigamy the first marriage may be proved by the admissions of the prisoner, and it is for the jury to determine whether what he said was an admission that he had been legally married according to the laws of the country where the marriage was solemnized." The court, of itself high authority, cited, as also sustaining this view, Reg. v. Upton, 1 Car. & K. 165, note, cited in 1 Russell, Crimes (Greaves' ed.) 218; Dutchess of Kingston's Case, 20 How. St. Tr. 355; Rex v. Trueman, 1 East, P. C.

470; Cayford's Case, 7 Me. 57; Ham's Case, 11 Me. 391; State v. Libby, 44 Me. 469; State v. Hilton, 3 Rich. L. 434, 45 Am. Dec. 783; State v. Britton, 4 McCord, L. 256; Warner v. Com. 2 Va. Cas. 95; Rex v. Norwood, 1 East, P. C. 470; Com. v. Murtagh, 1 Ashm. 272; Reg. v. Newton, 2 Mood. & R. 503; State v. McDonald, 25 Mo. 176; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373; State v. Seals, 16 Ind. 352; Arnold v. State, 53 Ga. 574; Cameron v. State, 14 Ala. 546, 48 Am. Dec. 111; Brown v. State, 52 Ala. 338; Williams v. State, 44 Ala. 24; Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225. The court then goes on to say (Miles v. United States, 103 U. S. 312, 26 L. ed. 484) that the declarations of the defendant "appear to have been deliberately and repeatedly made, and under such circumstances as tended to show that they had reference to a formal marriage contract," and hold that there was no error in the court below admitting the declarations, nor in the charge of the judge, which was, "The declarations of the accused were evidence proper to be considered by the jury as tending to prove an actual marriage, and that such marriage might be proved like any other fact, by the evidence of the defendant, or by circumstantial evidence."

So in Reg. v. Newton, 2 Mood. & R. 503, Wightman, J., held that the prisoner's admissions, deliberately made, of a prior marriage in a foreign country, are sufficient evidence of such marriage, without proving it to have been celebrated according to the law of the country where it is stated to have taken place. 1 Roscoe, Crim. Ev. (8th Am. ed.) 454.

§ 515. What must be Shown by the Prosecution.-The prosecutor must prove the two marriages; that at the time of the second marriage the offender was legally married to another. The law will not presume a valid marriage in cases of bigamy as it will in civil cases. Rex v. Jacobs, 1 Mood. C. C. 140.

Upon an indictment for bigamy, it was proved by a person who was present at the prisoner's second marriage, that the woman was married to him by the name of Hannah Wilkinson, the name laid in the indictment, but there was no other proof that the woman in question was Hannah Wilkinson. Parke, J., held the proof to be insufficient, and directed an acquittal. He subsequently expressed a decided opinion that he was right; and added, that to make the evidence sufficient, there should have been proof that the prisoner "was then and there married to a certain woman,

by the name of, and who called herself Hannah Wilkinson," because the indictment undertakes that a Hannah Wilkinson was the person, whereas, in fact, there was no proof that she had ever before gone by that name, and if the banns had been published in a name which was not her own, and which she had never gone by, the marriage would be invalid. Rex v. Drake, 1 Lew. C. C. 25.

If, in a case of bigamy, there be a discrepancy between the Christian name of the prisoner's first wife, as laid in the indictment, and as stated in the copy of the register which is produced to prove the first marriage, the prisoner must be married, and having a husband alive, married with the widower of the deceased sister, she is guilty of bigamy, though by 5 & 6 Wm. IV. chap. 54, such marriage is declared to be null and void to all intents and purposes whatsoever. In deciding the point, Lord Denman, Ch. J., said: "I have no doubt whatever that this marriage was null and void under the act mentioned, but that circumstance does not, in my opinion, affect the charge against the female prisoner. Her offense consisted, not in the contracting that which, but for the existence of her husband, would have been a legal marriage, but in her going through the ceremony of marriage, and appearing to contract that which was a legal and binding union, at the time when she already had a husband living. That single fact constitutes the crime and the proof of it, and whether the union secondly contracted would or would not be null and void, if contracted under other circumstances, is a matter wholly immaterial to the inquiry. If it were otherwise in this case, the same argument would apply to all other cases; for if the second marriage be not null and void, the crime of bigamy cannot be committed. I am, therefore, decidedly of opinion that Jane Bawm committed bigamy by marrying with Thomas Webbe, though it was within the prohibited degree of affinity." Reg. v. Bawm, 1 Cox, C. C. 33.

The validity of a marriage is to be determined by the law of the place where it was celebrated; if valid there, it is valid everywhere. Phillips v. Gregg, 10 Watts, 158.

The prosecutor must prove the two marriages, that at the time of the second marriage the offender was legally married to the other. The law will not presume a valid marriage in cases of bigamy as it will in civil cases. Smith v. Huson, 1 Phillim. 257; Rex v. Jacobs, 1 Mood. C. C. 140.

If the first marriage be void, an indictment for bigamy cannot be sustained. Thus, if a woman marry A, and in the lifetime of A marry B, and after the death of A, and whilst B is alive, marry C, she cannot be indicted for bigamy in her marriage to C, because her marriage with B was a mere nullity. 1 Hale, P. C. 693.

In Reg. v. Simmonsto, 1 Car. & K. 164, it was held that "on an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner; and it is for the jury to determine whether what he said was an admission that he had been legally married according to the laws of the country where the marriage was solemnized.

The same view is sustained by the following cases: Reg. v. Upton, 1 Car. & K. 165, note, cited in 1 Russell, Crimes (Greaves' ed.) 218; Dutchess of Kingston's Case, 20 How. St. Tr. 355; Rex v. Trueman, 1 East, P. C. 470; Cayford's Case, 7 Me. 57; Ham's Case, 11 Me. 391; State v. Hilton, 3 Rich. L. 434, 45 Am. Dec. 783; State v. Britton, 4 McCord, L. 256; Warner v. Com. 2 Va. Cas. 595; Rex v. Norwood, 1 East, P. C. 470; Com. v. Murtagh, 1 Ashm. 272; Reg. v. Newton, 2 Mood. & R. 503; State v. Libby, 44 Me. 469; State v. McDonald, 25 Mo. 176; Cameron v. State, 14 Ala. 546, 48 Am. Dec. 111; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373; State v. Seals, 16 Ind. 352; Arnold v. State, 53 Ga. 574; Brown v. State, 52 Ala. 338; Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225; Williams v. State, 44 Ala. 24.

It has been said, that upon a charge of bigamy, a marriage in fact, as distinguished from the acknowledgment and cohabitation of the parties must be proved. Morris v. Miller, 4 Burr. 2057; Fenton v. Reed, 4 Johns. 52, 4 Am. Dec. 244; People v. Humphrey, 7 Johns. 314; State v. Roswell, 6 Conn. 446. But this rule, even in the case of bigamy, is far from being well established. What weight the evidence of the admission and acts of the party accused is to have in establishing the fact of marriage, must depend very much, of course, upon the peculiar circumstances of the case. But I am unable to see why it should be necessary to prove the first marriage by eye-witnesses of the ceremony, or those who heard the marriage agreement. In every other case, the acts and admissions of a party, even though he be rccused of a capital offense, are evidence against him. It is not easy to say why such evidence should not be received to prove a

marriage. What weight the evidence should be allowed to have, is quite a different question. It may not be sufficient to warrant a conviction, but upon principle, it must be regarded as competent. It should be received for what it is worth.

Under the rule that a connection confessedly illicit in its origin or shown to have been such, will be presumed to retain that character until some change is established, it is not essential in order to establish such a change, or to show the precise time or occasion thereof; it is sufficient if the facts show that a change must have occurred transforming the illicit intercourse into cohabitation matrimonial in its character. Badger v. Badger, 88 N. Y. 547, 42 Am. Rep. 263.

§ 516. Legal Wife not a Competent Witness.-Under the prosecution for bigamy under the statute of 1 Jac. chap. 11, it was said by Lord Hale: "The first and true wife is not allowed to be a witness against her husband, but I think it clear the second may be admitted to prove the second marriage for she is not his wife, contrary to a sudden opinion delivered in July, 1664, at the Assizes in Surrey, in Arthur Armstrong's Case, for she is not so much as his wife de facto." 1 Hale, P. C. 693.

So in East's Pleas of the Crown the rule is thus laid down: "The first and true wife cannot be a witness against her husband, nor vice versa; but the second may be admitted to prove the second marriage, for the first being proved she is not so much as wife de facto, but that must first be established." 1 East, P. C. 469. The text of East is supported by the following citation of authorities: 1 Hale, P. C. 693; 2 MS. Sum. 331; Ann Cheney's Case, O. B. May, 1730, Sergt. Foster's MS.

In Peake's Evidence (Norris), 248, it is said: "It is clearly settled that a woman who was never legally the wife of a man, though she has been in fact married to him, may be a witness against him; as in an indictment for bigamy, the first marriage being proved by other witnesses, the second wife may be examined to prove the marriage with her, for she is not de jure his wife."

The result of the authorities is that as long as the fact of the first marriage is contested, the second wife cannot be admitted to prove it. When the first marriage is duly established by other evidence to the satisfaction of the court, the second may be admitted to prove the second marriage but not the first, and the jury should have been so instructed.

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