| Minn. | Apr 25, 1878
The subject of challenging jurors in this state is made a matter of statutory regulation. It is made the duty of the court to inform the defendant before a juror is called, that, “if he intends to challenge an individual juror, he shall do so when the juror appears, and before he is sworn.” Gen. St. c. 116, § 10. “A challenge to an individual juror is either peremptory or for cause.” Id. § 11. “It shall be taken when the juror appears and before he is sworn.” Id. § 12. It is also provided that “all challenges to an individual juror shall be taken first by the defendant, and then by the state; and each party shall exhaust all his challenges before the other begins.” Id. § 33. A peremptory challenge is
The indictment in this case follows the precise form prescribed by the statute for an indictment of this character. Gen. St. c. 108, § 2, No. 25. It must, therefore, be held good. Bilansky v. State, 3 Minn. 313, (427;) State v. Ryan, 13 Minn. 370" court="Minn." date_filed="1868-07-15" href="https://app.midpage.ai/document/state-v-ryan-7962380?utm_source=webapp" opinion_id="7962380">13 Minn. 370; State v. Thomas, 19 Minn. 484" court="Minn." date_filed="1873-04-15" href="https://app.midpage.ai/document/state-v-thomas-7962814?utm_source=webapp" opinion_id="7962814">19 Minn. 484. The gist of the offence charged was unlawfully contracting a second marriage with the party named in the indictment, while the accused had a wife then living. It was stated with sufficient precision to apprise him of the particular offence which he was required to meet, and as the general averment, “that he had a wife then living,” was sufficient, under the statute, to admit proof of the former marriage and its validity, it was unnecessary to state in the indictment the time and place when and where it was consummated, or the maiden name of the former
Another error alleged by defendant is upon the ruling and instruction of the trial court, upon the sufficiency and effect of the evidence which was introduced to establish the existence of the defendant’s former marriage. In order to a conviction, in a case of this character, the rule undoubtedly requires proof, by competent evidence, of a prior, legal marriage in fact; and such fact must be established to the satisfaction of the jury beyond a reasonable doubt. Formerly, such fact could only be proved by direct evidence. This rule, however, has been changed by our statute, (Gen. St., c. 73, § 89,) which in terms enacts that, “when the fact of marriage is required or offered to be proved before any court, evidence of the admission of such fact by the party against whom the proceeding is instituted, or of general repute, or of cohabitation as married persons, or any other circumstantial or presumptive evidence from which the fact may be inferred, shall be competent.” Under this statute, indirect and circumstantial evidence of the character indicated is not only admissible in all cases for the purpose of establishing the fact of marriage, but such fact may be proved by such evidence alone, whenever its strength and weight are such as reasonably to produce upon the mind of the jury that degree of conviction requisite in all criminal proceedings. State v. Johnson, 12 Minn. 476" court="Minn." date_filed="1867-07-15" href="https://app.midpage.ai/document/state-v-johnson-7962308?utm_source=webapp" opinion_id="7962308">12 Minn. 476. In reference to this matter, we discover nothing in the conduct of the trial, or in any ruling of the district court, at all in conflict with these views, or calling for a new trial.
The indictment alleges that defendant “unlawfully married one Susie E. Eoe, whose true name was and is Susan E. Weller.” It is objected that the court erred, at the close of the testimony for the prosecution, in not granting defendant’s motion to dismiss, for the reason that there was “no evidence to prove his (defendant’s) marriage to Susan E. Weller.” This averment as to the name was descriptive of the person, and not of the offence. Its only office or importance was to
The remaining question for consideration relates to the decision of the court excluding what purports to be an authenticated copy of a decree of divorce of the “probate court in and for Box Elder county, in the territory of Utah,” entered in that court at a special term, on December 18, 1876, in an action between John L. Armington, plaintiff, v. Martha F. Armington, defendant, dissolving the marriage contract between them. 'Among the objections made to this evidence, was the one that, at the time the decree purports to have been rendered, both parties thereto were residents of this state, and had been for several years prior. When this evidence was offered, it incontestably .appeared, from the testimony already given, that both the defendant and his said wife, Mrs. Martha F. Armington, had been resident citizens of this state, and domiciled therein, for over nine years prior to the date of the decree, and that they were both actually living in this state at the time of its entry. It did not appear, nor was any offer made to show the fact, that either had ever been domiciled, even temporarily, within the territory of Utah; and as to Mrs. Armington, it is quite clear that she never, at any time during the progress of the proceedings in said court, was outside the limits of this state, or within the territorial limits of Utah. As to Mr. Armington, the most that can be claimed
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. In defining the offence of polygamy, the statute declares that “if any person who has a former husband or wife living, marries another person, or continues to cohabit with such 'second husband or wife, he or she shall,” except in the cases therein specified, “be deemed guilty of the crime of polygamy.” The excepted cases refer to a marriage after a legal divorce, by one not the guilty cause thereof, and to one innocently contracted under a belief that the former wife or husband is dead, when such wife or husband has been continuously absent, either beyond the sea or after a voluntary withdrawal, and without being heard from alive, for the period of seven years. It will be observed, from these provisions, that in a case like the one at bar, the existence of a criminal intent, in fact, on the part of the accused, is not an essential ingredient of the statutory crime charged. If the facts specified in the statute are shown to exist, the law presumes the guilty knowledge and intent. Hamilton v. People, 57 Barb. 625" court="N.Y. Sup. Ct." date_filed="1870-10-04" href="https://app.midpage.ai/document/hamilton-v-people-5462151?utm_source=webapp" opinion_id="5462151">57 Barb. 625. If the pretended decree of divorce 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. His mistake or ignorance, if any, was one of law, and not of fact. His case, therefore, is one to which the maxim, ignorantia juris non excusat, applies. Being, together with his lawful wife, a resident citizen domiciled in this state and subject to its laws, he was bound to know that the tribunals of no other state or territory could rightfully take cogni
Judgment affirmed.