118 P. 965 | Cal. Ct. App. | 1911
This is an appeal by the people from an order allowing defendant's demurrer to the information.
The information, which charged the defendant with the crime of bigamy, was as follows: "That the said Alfred W. Priestley, on or about the 19th day of January, A.D. 1911, . . . and before the filing of this information, was the lawful husband of one Susan Dunbar Priestley . . . who was then and there alive, and the said Alfred W. Priestley . . . to wit, on the 19th day of January, 1911, . . . did feloniously marry one Mabel Addie Cook, the said marriage between the said Susan Dunbar Priestley and the said Alfred W. Priestley . . . not having been dissolved, annulled or pronounced void by a court of competent jurisdiction."
To this information the defendant demurred on general grounds, and also specially upon the ground that the information does not show that the defendant married "any other person" other than his first wife; that the information does not directly charge that the former marriage of the defendant had not been annulled by a judgment of a competent court; that it does not allege that the former wife was not absent for five successive years without being known to the defendant within that time to be living. Other grounds specified in the demurrer are that the information does not allege the date nor the place of the first marriage, nor that the defendant knew that the "first alleged wife was his lawful wife"; nor, says the demurrer, "does the information allege a fact but a conclusion of law in alleging that the defendant was the lawful husband of one Susan Dunbar Priestley."
Section
Section 282 of the same code provides: "The last section does not extend —
"1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living; nor,
"2. To any person by reason of any former marriage which has been pronounced void, annulled or dissolved by the judgment of a competent court." *174
It will be observed that the information does not negative the exception contained in subdivision 1 of section 282, i. e., that the defendant's wife has been, absent for five successive years without being known to the defendant within that time to be living. If it be true that this exception is so incorporated into the language defining bigamy as to constitute a part of the description, of the offense, then it should have been negatived, and the order of the court sustaining the demurrer was correct. The exceptions to section
Thus, in this state an information for rape must aver that the act was accomplished with a female "not the wife" of the defendant, because such allegation is a part of the definition of the crime. (People v. Miles,
On the other hand, it has been held in Hart v. Cleis, 8 Johns. (N.Y.) 41, that in an action for a penalty under a section, which prohibited the exportation of slaves, "except as hereinafter provided," the plaintiff need not negative the proviso of a succeeding section which allowed persons traveling through or removing from the state to take their slaves with them.
In Massachusetts, New York, Vermont and Ohio the statute on bigamy is like our own in that the portion defining the crime is followed by other sections enumerating certain exceptions. In those states it is held that the subject of the exceptions is not a part of the enacting clause, but that the exceptions constitute matters of excuse or defense.
In Fleming v. People,
In the case of Commonwealth v. Jennings,
So in the case of Stanglein v. State,
In the case of State v. Abbey,
The views expressed in the Vermont case are strongly approved in Ex parte Hornef,
There is no merit in the respondent's contention that the information is defective in not alleging the date or place of the first marriage. It is immaterial when or where the first marriage took place if the accused, at the time of the second marriage, had a wife living. In People v. Giesea,
So in the case of State v. Hughes,
The respondent also urges that the "information does not charge that the defendant knew that the alleged first wife was his lawful wife." This objection is hardly worthy of notice. A second marriage under an erroneous assumption that the first marriage was void, or had been annulled or dissolved, is not even a defense to the charge; much less need it be alleged in the information. (People v. Hartman,
The respondent also urges the point that the information does not charge directly that the former marriage of defendant had not been pronounced void by a judgment of a court of competent jurisdiction, but what we have already said disposes of this contention.
The point that the information does not follow the language of section
The order appealed from is reversed.
Hall, J., and Lennon, P. J., concurred. *178