66 Ark. 185 | Ark. | 1899
(after stating the facts.) Section 1480, Sandels & Hill’s Digest, provides: “Every person having a wife or husband, living who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy.”
“Sec. 1481. The last preceding section shall not extend to the following persons or cases--
“First. To any person, by reason of any former marriage, whose wife or husband by such marriage shall have been absent for five successive years, without being known to such person within that time to be living. .
“Second. To any person whose wife or husband has been-absent from the United States for the space of five years.
“Third. To any person whose former marriage has been dissolved by a court of competent authority.
“Fourth. To any person whose former marriage has been pronounced void by the decree or sentence of a court of competent authority, on the ground of the nullity of the marriage contract.
“Fifth. To any person by reason of any former marriage-contract by such person, within the age of legal consent, and-which has been annulled by a decree of a court of competent-authority.”
Section 1482 provides:. “If any unmarried person shall knowingly marry the husband or wife of another, in any case in which said husband or wife would be punished according to the foregoing provisions, such person, on conviction, shall be subject to the same punishment as is prescribed in-cases of bigamy.”
We find that the rulings of the court were correct in refusing to allow proof that the defendant believed he had been divorced from his first wife at the time of his second marriage, as this was no defense. The cases cited by the attorney general in his brief sustain the ruling of the court upon this-question. These cases are to the effect that “the material facts of the crime of bigamy are the first and second marriages, and the fact that the first consort was alive and undivorced at the date of the void marriage. From such facts a bigamous intent may be inferred.” Underhill, Evidence, § 398. That defendant had been told and believed that his first marriage was void, and acted on such belief, is no defense to a prosecution for bigamy. State v. Sherwood, 35 Atl. 352, 68 Vt. 414. An honest and reasonable belief in the death of a former wife is no defense to a prosecution for bigamy. Com. v. Hayden (Mass.), 40 N. E. 846. It is the marrying by a person who has a husband or wife living that, constitutes the offense under our statute, and the offense is complete under the second marriage. Scoggins v. State, 32 Ark. 205. Advice of counsel that there is no impediment to the second marriage is no defense to a prosecution for bigamy. People v. Weed, 29 Hun, 628; State v. Hughes, 58 Iowa, 165. To support an indictment for bigamy, it is sufficient to prove that defendant, being at the time lawfully married to one person, has married another. Com. v. Mash, 7 Met. (Mass.) 472.
In State v. Armington, 25 Minn. 29, the facts, briefly stated, were as follows: Armington was indicted in Minnesota for bigamy. He offered in evidence a certified copy of a decree of divorce between him and his first wife. This divorce was obtained in Utah. Counsel for the state objected to its admission, on the ground that at the time both parties were residents of Minnesota. The objection was sustained. Counsel for the defendant then offered to show by the paper and parol testimony of defendant that, at the time of the second marriage, he had this paper in his possession, and believed the decree to be effectual to make him a single man, and believed himself to be such, and that he would not have married again had he not believed such; and he had submitted the paper to a good attorney in this state, and had been advised that the paper -vyas sufficient; and had married, relying on such advice and a copy of the decree, believing that he had a right to. All of this evidence was excluded, and on appeal to the supreme court that tribunal said: “To disprove any criminal intent, the record was also offered in evidence, coupled with an offer to show that the defendant, acting under the advice of counsel, believed in the validity of such alleged divorce, and that he contracted his second marriage in this belief. * * * If the pretended decree upon which he relied was in fact illegal and void, because made by a court having no jurisdiction, it afforded him no protection against the consequences of a second marriage, whatever may have been his motives or his belief in respect to the validity of the decree.”
We think the evidence offered by the defendant affecting his intention and good faith in his second marriage was competent, not to show that he was not guilty, but because it might have affected the term of his imprisonment. But as defendant was given tbe lightest punishment fixed by the statute, its refusal is not reversible error.
Affirmed.