89 Neb. 701 | Neb. | 1911
In a prosecution by the state, Alfred T. Staley, defendant, was convicted of bigamy, and for that offense was sentenced to serve a term of one year in the penitentiary.
This is defendant’s second conviction for the same offense; the first having been reversed as erroneous. Staley v. State, 87 Neb. 539. A statute declares that a marriage in this state between first cousins is void. Comp. St. 1909, ch. 52, sec. 3. Though that relationship exists between defendant and Hettie Bixler, they were married in Council Bluffs, Iowa, in 1907, when they were residents of Omaha. Under the laws of Iowa the marriage is valid there, and consequently it is likewise valid here. State v. Hand, 87 Neb. 189. They lived together as husband and wife until February, 1908, when he left her in Omaha, where they were at the time residing. Without procuring a divorce, defendant was married to Pearl Stoner, in Lancaster county, August 7, 1909, though his former wife is still living. These facts and conclusions are not in dispute.
Defendant argues that the conviction should not be permitted to stand for the following reasons: In entering into the second marriage, he did not intend to commit a crime. He believed in good faith that his marriage with his cousin was void, and that a divorce or an annulment of the marriage was entirely unnecessary. He was so advised by three lawyers and conscientiously relied upon their advice. A deputy county attorney of Douglas county told defendant the marriage was void, and threatened him with prosecution if he did not abandon his unlawful relations with his cousin. During the trial defendant offered to prove these facts, and the exclusion of proof offered for that purpose is his principal ground of complaint. Can he excuse his bigamy by showing that he was cowed by the threat of the officer and that in good faith he acted on the advice of counsel? The validity of the marriage with his cousin was a question of law, and not of fact. Ignorance of facts, where there is no criminal intent, often excuses offenses, but this rule does not in general extend to ignorance of the law. That one áccused of crime liad endeavored to ascertain the law and had been misled
That defendant was free from the criminal intent essential to a crime is the principal feature of an able argu-ment in his behalf. The statute denouncing bigamy does not make intent an element of the crime. It provides: “That if any married person, having a husband or wife living, shall marry any other person, every person so offending shall be imprisoned in the penitentiary not more than seven years nor less than one year.” Criminal Code, sec. 201. Malice may be implied from a wilful violation of the statute and a reckless disregard of existing marital relations. Both defendant and his cousin-wife'testified there never had been any domestic trouble to suggest a separation. There is proof that he knew that she was pregnant when he left her. Under such circumstances he had an accusing conscience when he formed the purpose to abandon her, unless he was devoid of all marital sentiment and of every worthy instinct of paternity. These natural impulses of the human heart ought to have given a warning signal, even if the statutes had been silent on the subjects of bigamy and divorce. To the threatened prosecution in a court of justice, his valid
It is further insisted that the state was erroneously permitted to introduce testimony that a child was the issue of defendant’s marriage with his cousin. Defendant himself testified to that fact, and it is perfectly plain on the face of the record that he was in nowise prejudiced by such proof in his attempt to establish the defense already outlined.
It is suggested, further, that the court erred in admit
Affirmed.