258 P. 447 | Cal. Ct. App. | 1927
On the tenth day of December, 1926, the district attorney of Alameda County filed an information against the defendant charging him with the crime of bigamy. On December 14th the defendant entered a plea of not guilty. By consent the cause was set for trial on January 10, 1927. On that date the trial was continued until a subsequent date. However, on January 12, 1927, by consent, the last-named order was set aside and the trial was taken up immediately by consent. Acting upon the *384 request of the defendant he was allowed to withdraw his plea of not guilty and to enter a plea of guilty. At the request of the defendant the cause was ordered referred to the probation officer and the further proceedings were continued until January 25, 1927. From time to time the hearing was further continued. On March 19, 1927, the hearing was again taken up and at that time the defendant asked permission to withdraw his plea of guilty and to enter a plea of not guilty. Argument was had and the further proceedings were continued until March 22, 1927. On that date the trial court denied the defendant's motion to change his plea, and also denied him probation, and thereupon the court proceeded to sentence the defendant. Immediately thereafter counsel for the defendant made a motion that the sentence and judgment be set aside and renewed his motion that the defendant be permitted to withdraw his plea of guilty and to enter a plea of not guilty. In support of his motion the defendant offered in evidence an affidavit theretofore made by him and at the same time he took the stand and was examined and cross-examined.
From the evidence introduced it transpired that the alleged offense of the defendant rested on the fact that he married Audrey Ethel Hargraft at Oakland, California, on the third day of August, 1926. Prior to that date he married Marjorie K. Roys at Sacramento, California, who was still living and that marriage had never been dissolved or annulled. It also appeared that Marjorie K. Roys had formerly married Reuben F. Roys and that they had been divorced by a decree of the circuit court of the state of Oregon in and for the county of Multnomah on the twenty-eighth day of August, 1923. It was not contended in the trial court, and it is not contended in this court, that Mrs. Roys and the defendant left Oregon and went to Sacramento to be married and did so for the purpose of evading the laws of the state of Oregon. The trial court denied the motion to set aside the sentence and judgment, and from the judgment entered against the defendant he has appealed.
Both in the trial court and in this court the defendant contended (1) that he had been induced to enter a plea of guilty because he would surely secure probation, and (2) under the laws of Oregon Marjorie K. Roys was not legally divorced before she married the defendant, was not entitled *385 to contract marriage, and that the intermarriage of the defendant and Marjorie K. Roys was void.
[1] An examination of the record discloses that the defendant did not contend that the trial court or any officer thereof stated or intimated to the defendant that he would surely secure probation if he would enter the plea of guilty. It does appear that the defendant's counsel advised the defendant that if he desired to obtain probation it would be better to enter the plea of guilty. Such facts were not sufficient to sustain the claim that the trial court erred in refusing the defendant permission to change his plea. (People v. Manriquez,
The second point made by the appellant involves no question of fact, but solely a question of law as to whether Marjorie K. Roys was, under the laws of Oregon, at liberty to contract a valid marriage at Sacramento, California, on November 30, 1923. In open court counsel for both parties stipulated that the laws of Oregon on the subject were embodied in the statutes and decisions from which we have quoted or which we have cited below. The original statutory provision will be found in 1 Hill's Annotated Laws, section 503. Later that statute was amended to read as follows: "A decree declaring a marriage void or dissolved at the suit or claim of either party shall have the effect to terminate such marriage as to both parties except that neither party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor as if said decree had not been given, until the suit has been heard and determined on appeal; but in no case until the expiration of six months from the date of said decree." In the case of Twigger v. Twigger,
[2] "Where a question as to the construction or effect of the constitution or statutes of a state arises in the courts of another state, or of the United States, such courts should follow the decisions of the court of last resort of the state whose constitutional or statutory provisions are involved, even though they would be inclined to place a different, or even an opposite, construction upon a similar provision if it appears in the constitution or statutes of their own state." (15 C.J. 927, sec. 316.)
In McGrew v. Mutual Life Ins. Co.,
[3] These authorities lead us to the conclusion that the highest court of Oregon has decided that that court has never held that the Oregon laws of divorce have any extraterritorial application to marriage contracted in some other state. We are entitled, therefore, to assume that the law of Oregon is the same as the law of the state of California. [4] However, the law of the state of California on the subject has been very clearly defined. In the case entitled Estate of Wood,
The judgment is affirmed.
Nourse, J., and Koford, P.J., concurred.