126 Tenn. 415 | Tenn. | 1912
delivered the opinion of the Court.
Plaintiff in error, Martin B. Dunlap, was by indictment charged with the crime of bigamy. Upon arraign
Upon this assignment of errors, the only question arising is whether or not the State, on the trial below, made out its case by proof sufficient in law of the fact that the woman first married by plaintiff in error was living at the time of the second marriage.
The indictment charged “that Martin B. Dunlap, on the 4th day of January, 1911, in the State and county aforesaid, being already lawfully married, and having at the time a living wife from whom he had not been divorced, did unlawfully, knowingly, willfully, and felo-niously marry one Eva Simmerly, against the peace and dignity of the State.”
. Our statute on the subject of bigamy and bigamous cohabitation is found at section 6760 of Shannon’s Code in these words: “If any person, being married, shall marry another person, the former husband or wife then living, or continue to cohabit with such second husband or wife, in this State, such person shall be imprisoned in the penitentiary for not less than three or more than twenty-one years.” Section 6761 of Shannon’s Code provides that “no person shall be deemed guilty under the preceding section whose husband or wife shall continuously remain beyond the limits of the United States,
The plaintiff in error was first married to Josie Hardin in Blount county, Tenn., on the 14th day of April, 1906. His second marriage was to Eva Simmerly on the 4th day of January, 1911. Each of these marriages was properly proved by a certified copy of the marriage licenses and the return of the person authorized to solemnize the marriage under the provisions of our statute. Section 6762 of Shannon’s Code.
The State, upon trial of the cause, produced no witness by whom proof was made that the first wife was living at the date of the second marriage, nor, as we see the record, do the circumstances developed by the State’s proof establish this very material and important fact. The defendant’s proof is equally barren of evidence or circumstances establishing this fact. It appears from the defendant’s proof that, at the date of the trial, he was twenty-four years of age. At the date of his first marriage, he was about seventeen years of age. He had known the girl of his first marriage only ten days at the date of that event. He claims to have discovered very soon after his marriage that she was a bad woman. They separated, and she returned to her home in Georgia. This separation, he said, was nearly five years before his trial, since which time he claims never to have seen her, or received a letter or direct message from her. He
If the woman first married was, in fact,, dead at the date of the second marriage, manifestly, the latter marriage was valid, and, in making it, no offense was committed by the plaintiff in error. It was, therefore, a vital part of the State’s case to prove, either by the direct evidence of some competent witness who knew the fact, or by circumstances in law sufficient to establish the fact, that the first wife was living at the date of the second marriage.
In McClain on Criminal Law, sec. 1084, it is said:
In the note to the last quoted text, the author says: “In one case, it is said that proof of the mere fact that
In Cyc., vol. 5, p. 700, in respect of the burden of proof, it is said: “The prosecution must prove a valid first marriage contracted by defendant, and that the lawful spouse of defendant was living at the time of the contraction of the second marriage by him.”
In Regina v. Lumley, Law Rep., 1 C. C. Res., 196, an English case, Lush, J., speaking for the whole court, observed: “In an indictment for bigamy, it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be,was alive at the date of the second marriage. This is purely a question of fact. The existence of the party at an antecedent date may or may not afford a reasonable inference that he was living at a subsequent date. If,' for instance, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible, that he was living on the latter day, a.nd the jury would, in all probability, find that he was so. If, on the other hand, it were that he was then in a dying condition, and nothing further was proved, they would probably decline to draw that inference. Thus the question is entirely for the jury. The law makes no presumption either way.”
In Squire v. State, 46 Ind., 459, it is said:
“It is next contended that the appellant was improperly convicted, because there was no evidence that his former wife was alive at the time of his second mar*422 riage. The statute upon which this prosecution is based provides that ‘If any person, being married, shall marry again, the former husband or wife being alive, and the bond of matrimony still nndissolved, and no legal presumption of death having arisen, such person so offending shall be deemed guilty of bigamy,’ etc. Section 46, 2 G. & H., 452.
“The indictment in the present cause charged that the first wife of the appellant was alive at the time of the second marriage, and that no presumption of death had arisen. If there had been direct proof that the first wife was alive at the time of the second marriage of the appellant, and that he was aware of such fact, the presumption of her death would have been unimportant. But there is no direct proof that she was alive at such time. It therefore becomes necessary to inquire whether there was any presumption of her death, and, if there were, whether such presumption was strong enough to overcome the presumption of the innocence of the appellant. ...
“In the present case, there was no direct evidence that the first wife of the appellant was living at the date of the second marriage. It was proved by the admissions of the appellant that she was alive two years previous to the second marriage. There was no evidence as to her age and health, which have a controlling influence in the case of conflicting presumptions. The State was required to' satisfy the jury beyond a reasonable doubt, either by direct proof or by presumptions arising from facts proved, that the first wife was living at the time of the second marriage. There was no direct evidence. The presumption of the continuance of life*423 was neutralized by the presumption of the innocence of the defendant. Bishop says, in such a case, the jury must act on other presumptions or evidence. There are no presumptions of law. There was no evidence as to the age or health of the first wife to strengthen the presumption of the continuance of her life. The case was submitted to the jury without either direct evidence or a presumption to establish that she was alive at the time of the second marriage. Without such proof, there could be no conviction; for'there was no crime committed, if the first wife was dead or divorced.”
For the failure of the State to prove that the first wife was living at the time of the second marriage, the judgment in the above case was reversed.
In our own case, Crane v. State, 94 Tenn., 94, 28 S. W., 319, where one of the defenses relied on was that there was not sufficient proof of the first marriage, this court held that the trial court, in that case, did not err in charging the jury “that defendant was guilty if he kneAv that his former wife was living, or had good reason to believe that she was alive when he made his second marriage.” But in that case the proof was clear, not only that the first wife was alive at the time of the second marriage, but also that the defendant had admitted to the father of the wife of the first marriage that he, the defendant, knew that his first wife was living at the date of the second marriage. It is clear that this court in this case indulged no’ presumption that the first wife was living at the date of the second marriage, but, on the contrary, found in the record
“The defendant treated me all right while living together, and we had plenty to live on. He told me that his first wife was going to prosecute him, because he did not'give her notice about getting a divorce from her in Maryville, and that was why he left me.”
The above evidence by the wife of the second marriage is the only evidence for the State tending to refute the defendant’s contention that he did not know or have reason to believe his first wife to be living at the time of his second marriage. The defendant, on the other hand, says that his second wife is mistaken in her testimony above quoted. He admits that he did tell her that he had understood that the remarriage of his first wife in Georgia and her long absence from him operated to divorce him from her. He states that he was misled in this, and, furthermore, thought his first wife was dead, and that he had a right to marry again, and otherwise would not have done so. Should we, upon this unsatisfactory state of the proof upon one of the vital points of the State’s case, hold the fact to be established that the first wife was living at the time of the second marriage, or should we hold that fact to be
Reversed and remanded.