Jones v. State

67 Ala. 84 | Ala. | 1880

BBICKELL, O. J.

— The evidence proposed to be introduced by the appellant was, in our opinion, properly rejected. The statute imposed a penalty upon any person having a former wife or husband, who marries another in this State. — Code of 1876, § 4185. There are exceptions in favor of the person who has procured a decree of divorce from a court of competent jurisdiction, the decree allowing him or her to marry again ; and any person who, at the time of a second marriage, did not know his or her former husband or wife was living, if such husband or wife had been absent for the last five years preceding such marriage. Code of 1876, § 4186. In its words and purposes the statute is plain. The legality of a second marriage can, but in the single instance expressed in the statute, depend upon the ignorance of the party as to the life or death of an absent husband or wife; and that is, a continuous absence for five years immediately preceding the second marriage. It was not intended, in a matter of so much importance, that parties should act upon mere absence, nor upon any belief of death not superinduced by higher evidence than mere rumor. And though there may be a continuous absence for five years, thatx of itself will not excuse a second marriage, if it be known to the party that the absent husband or wife is living. There must be the continuous absence connected with a- want of knowledge that the absent party is in life. Whoever marries a second time, having a former husband or wife living, absent for a less period than five years, violates the statute, and is subject to punishment. Belief, honestly entertained, founded on mere report or rumor, will not excuse.— Commonwealth v. Marsh, 7 Metc. 472; Dotson v. State, 62 Ala. 141.

But it is strenuously argued that a criminal intent is an element of every crime, and if the appellant honestly believed from the reports which had reached her, that her husband was dead, she could not have had a criminal intent. The statute, however, rendered it criminal for her to marry the second time, unless her husband had been absent for a period of five years, if he be actually living. “Whatever one does voluntarily, he intends of course to do.” Every act was done by the appellant, under all the circumstances expressed in the statute, which is declared criminal, and from the act and the circumstances, the criminal intent must be deduced.” There was the intent to marry a second time, not knowing the husband to be dead, who had been absent for a period of about one year only, and this is the criminal intent, and the only intent which is of the essence of the offense. In the language of C. J. Shaw, in Com. v. Marsh, supra, “the law has deemed it so important to prohibit the crime of polygamy, and found it so difficult to prescribe what shall be sufficient evidence of the death of an absent person to warrant a belief of the fact, and as the same vague evidence might create a belief in one mind and not in .another, the law has also deemed it wise to fix a definite period” of five years continued absence, “without knowledge of the contrary to warrant a belief that the absent person is actually dead.” The evidence was immaterial and irrelevant, and if it had been admitted, could not have lessened the guilt imputable to the appellant because of a second marriage prohibited by the statute.

Affirmed.