16 N.Y.S. 575 | N.Y. Sup. Ct. | 1891
The defendant, before pleading to the merits of the indictment, demurred to the same, alleging several grounds of demurrer, which demurrer was overruled; but no point is made on this appeal on the demurrer, and it therefore requires no discussion here; and, so far as appears, the demurrer was properly disposed of by the trial judge. The first ground urged by appellant for the reversal of this conviction is that the defendant’s alleged marriage in Hew Jersey to Laura Ann Lane was void under the laws of Hew Jersey, where it occurred, by reason of his previous marriage to one Beatrice Vulcan Butters, who at the time of his alleged marriage to Lane was living and his lawful wife, and that bigamy could not be predicated upon his marriage with Leona Dn Bois after the alleged marriage with Lane, for the reason that that marriage was absolutely void, and constituted, therefore, no previous marriage, and that, consequently, the defendant did not marry Leona Du Bois while he was married to the said Laura Ann Lane, as charged in the indictment. In support of this contention the appellant’s counsel cites the Hew Jersey statute, which provides “that all marriages where either of the parties shall have a husband or wife living at the time of such marriage shall be invalid from the beginning, and absolutely void, and the issue thereof shall be deemed to be illegitimate, and subject to the legal disabilities of such issue.” As this alleged marriage to Laura Ann Lane occurred in Hew Jersey, its validity must be determined by the laws of that state, (Van Voorhis v. Brintnall, 86 N. Y. 18; Moore v. Hegeman, 92 N. Y. 524,) provided that statute is properly before the court. The case shows that it was introduced in evidence, and this court must therefore take judicial notice of its provisions. It is true that the Hew Jersey statute quoted relates to divorces, and is not in terms applicable to criminal actions for bigamy; but it nevertheless prescribes the effect of a previous marriage, and renders the subsequent marriage void when celebrated in that stale; but it is not in terms, like the Michigan statute, which has been considered by the courts of the state in People v. Chase, 27 Hun, 257. That statute provides that such second marriage “shall be absolutely void without any decree of divorce or other legal process.” In People v. Chase, supra, the conviction was reversed on the ground that the bigamy alleged in the indictment, and upon which a conviction was had, was shown on the trial to have referred to a second and third marriage. The second marriage, being void by statute in the state where it was celebrated, was held to be no marriage, and therefore th - one in which the bigamy was alleged was not in legal effect the second marriage, as charged in the indictment. This was upon the theory that.the second and third marriages were the only marriages alleged, and, as the second was void, it was