delivered the opinion of the court:
Plaintiff in error was found guilty of bigamy in the circuit court of Sangamon county and sentenced to the penitentiary. He was married November 16, 1903, at the age of eighteen, with the consent of his parents, to Sarah Stanton, aged nineteen. They lived together in Springfield, Illinois, for several months, when they separated, the wife going to Peoria and the husband to Missouri. After working as a teamster and farm hand at various places he returned to Springfield about three months later and worked in a coal mine. August 26, 1906, he was married to Grace Watts. Both marriages were performed by the same justice of the peace and both licenses were obtained from the same county clerk. Plaintiff in error lived with his second wife in Springfield until May 30, 1907, whеn he was arrested for bigamy on the complaint of the first wife. The second wife, after an interview with the first, left plaintiff in error and did not again live with him. Plaintiff in error introduced both wives to neighbors and friends during the respective times he lived with them and introduced the second wife to a number of persons who had met the first one. His reputation appears to have been good. The facts, so far, appear to be practically undisputed. Plaintiff in error, however, attempted to prove that he had received from his first wife a number of letters, — one or more asking for money with which to procure a divorce, and one stating that she had obtained a divorce, and another telling him she was married again and hoped he was happy. It does not appear from the record that before attempting to prove the contents of these letters he offered to show that the lеtters themselves could not be produced. Questions were asked of his mother and sisters as to whether they had seen these letters, and as to whether the first wife had not admitted, in the оffice of the State’s attorney, that she had written such letters. These questions were objected to and the objections were sustained. The court also sustained an objection to the introduction of testimony of plaintiff in error that the testimony of two of his friends would show that they had visited Peoria and saw his wife living there with a man as his wife, and that she told them she was mаrried again. It appears that these witnesses were not present, but a motion was made to continue the case to obtain their testimony. This motion was denied.
Plaintiff in error сontends that when he married the second wife he believed his former wife had obtained a decree of divorce and re-married, but no evidence along this line was permittеd to be presented to the jury. The refusal to admit this evidence is the chief error urged. This question has never been presented to this court for decision. While it is true that there is authority to the effect that belief in information as to the divorce or death of the former wife, when acted on cautiously and circumspectly and without fault, has been held to rеlieve one from the criminal intent of a second marriage, (Bishop on Statutory Crimes,— 3d ed.—secs. 596a, 596b, 608; Queen v. Tolson, 8 Am. Crim. Rep. 59;) yet we think that the decided weight of authority in this country holds that proof of the fact that the second marriage was entered into in good faith, under an honest but mistaken belief that the first wife was dead or had obtained a divorce, cоnstitutes no defense to the charge of bigamy. (4 Elliott on Evidence, secs. 2871, 2872.) Where a legal divorce, granted before the second marriage, is offered as a defense, thе burden is on the defendant to prove the validity of the decree. 4 Elliott on Evidence, sec. 2873.
It is contended in this connection that the evidence offered as to the divorce obtained by the first wife tended to show lack- of criminal intent on the part of the plaintiff in error, and therefore should have been admitted. The intent may be inferred from the criminаlity of the act itself. The rule on this question is thus stated by Lord Mansfield: “Where an act, in itself indifferent, becomes criminal if done with a particular intent, there the intent must be proved and found; but whеre the act is in itself unlawful, the proof of justification or excuse lies on the defendant, and in failure thereof the- law implies a criminal intent.” State v. Goodenow,
The criminal stаtute on this question in this State reads as follows: “Whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this State, shall bе deemed guilty of bigamy, and be imprisoned in the penitentiary not less than one nor more than five years, and fined not exceeding $1000: Provided, nothing herein contained shall extend to аny person whose husband or wife shall have been continually absent from such person for the space of five years together, prior to said second marriage, and hе or she not knowing such husband or wife to be living within that time. Also, nothing herein contained shall extend to any person that is, or shall be at the time of such second marriage, divorced by lawful authority from the bands of such former marriage, or to any person where the former marriage hath been, by lawful authority, declared void.” Hurd’s Stat. 1905, chap. 38, sec. 28, p. 671.
From the wording of this stаtute the conclusion seems natural that in order to make the divorce a defense to prosecution for the second marriage it must be shown to have been legally granted. The naming of certain exceptions in the proviso may well be held to exclude other exceptions not named. (Gaddis v. Richland County,
The indictment against the plaintiff in. error spelled the name of his first wife as “Staunton” insteаd of “Stanton,” as the testimony showed it to be. It is contended on behalf of plaintiff in error that the court erred in giving an instruction to the jury to the effect that if they believed from the evidence, beyond a reasonable doubt, that plaintiff in error was married to Sarah Stanton, it was not material that the indictment spelled the name “Staunton” instead of “Stanton.” It was held by this court in Rivard v. Gardner,
We find no error in the record. The judgment of the circuit court will therefore be affirmed.
Judgment affirmed.