47 S.E. 450 | N.C. | 1904
Lead Opinion
The defendant was indicted under The Code, section 988, for bigamy. The admissions of the defendant were competent to prove the first marriage. State v. Wylde, 110 N. C., 500; State v. Melton, 120 N. C., 591; 2 McLain Cr. Law, section 1083, and cases cited in note 6; 2 Bish. Stat. Cr. (2 Ed.), section 610. It was therefore not
The Court charged the jury: “The burden is on the defendant to show that he did not know that his first wife was living for the seven years prior to his second marriage.” In this there was no error. The Code, section 988, after prescribing that a second marriage, during the life-time of the former husband or wife, is bigamy, and fixing the punishment therefor, contains the following proviso: “Provided that nothing herein contained shall extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to have been living within that time, nor shall extend to aiiy person who at the time of such second marriage shall have been lawfully divorced from the bond of the first marriage, nor to any person whose former marriage sh'all have been declared void by the sentence of 'any Court of competent jurisdiction.”
The burden is on the State to prove beyond a reasonable doubt both marriages, and that at the date of the second marriage the husband or wife of the defendant by the first marriage was still living. This completes the offense, but the proviso exempts the defendant notwithstanding from conviction and punishment if either one of three things, peculiarly within his knowledge, are shown, i. e., (1) that such former wife or husband had been continually absent for seven years at the date of the second marriage and shall not have been known by the defendant to have been living within that time;
In State v. Norman, 13 N. C., 222, construing the Act of 1790, now substantially the above section 988 of The Code (save that the punishment is not death as was then the case), Henderson, G. J., says that the proviso- therein “withdraws the case from the operation of the act” and the burden was upon the defendant to show the divorce, which in that case was the part of the proviso relied on. This ruling that the State is not called on to negative in the indictment matter of defense set out in a proviso -when it withdraws a case from the operation of the body of the section has been cited and approved. State v. Davis, 109 N. C., 780; State v. Melton, 120 N. C., 591; State v. Call, 121 N. C., 643; State v. Newcomb, 126 N. C., 1104, in which last case the authorities are reviewed.
The burden is on the defendant to show as a matter of defense that his wife had absented herself for the space of seven years next before the second marriage and that he was ignorant all that time that she was living. The authorities for this are abundant: State v. Barrow, 31 La., 691; State v. Lyons, 3 La. Ann., 154; Stanglein v. State, 17 Ohio St., 453; State v. Abbey, 29 Vt. 69, 67 Am. Dec., 754; Fleming v. People, 27 N. Y., 329; State v. Williams, 20 Iowa, 98; 2 Wharton Cr. Law (10 Ed.), sections 1704, 1705; 2 McClain
Speaking of another (tbe second) ground of defense allowed in tbe proviso, Lord Denman, G. J., said in Murray v. Reg., 7 Q. B., 706, that it would be as reasonable to require the prosecution to deny that tbe statute bad been repealed as to negative a divorce — one being as much a matter of defense as the other. Tbe matters set out in the proviso are, as above stated, matters peculiarly within tbe knowledge of tbe defendant, and none more so than whether he was ignorant of his wife’s existence at all times within seven years before tbe second marriage. “In such cases * * * tbe negative is not to be proved by tbe prosecutor, but on tbe contrary tbe affirmative must be proved by tbe defendant as matter of defense.” Wharton Or. Law, section 614; 1 Green-leaf Ev., section 79. In Rex v. Jarvis, 1 East., 643, Lord Mansfield said: “It is a known distinction that what comes by way of proviso in a statute must be insisted on, by way of defense, by tbe party accused; but where exceptions are in tbe enacting part of tbe law, it must appear in tbe charge that tbe defendant does not fall within any of them.”
All tbe authorities concur that neither tbe belief of tbe defendant, however honest, that tbe first spouse is dead, nor ignorance of his or her being alive for less than seven years is a defense. Reg. v. Cullen, 9 C. & P., 681; Com. v. Hayden, 163 Mass., 453, 28 L. R. A., 318, 47 Am. St. Rep., 468; Com. v. Mash, 7 Metc., 472. In 2 Wharton Or. Law (10 Ed.), section 1705, it is well said: “‘Men readily believe what they wish to be true’ is a maxim of tbe old jurists. To sustain a second marriage, and to vacate a first, because one of tbe parties believed tbe other to be dead, would make tbe existence of tbe marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment
No Error.
Dissenting Opinion
dissenting. I am inclined to agree with the line of authorities holding that where it has been shown that the wife has been absent from her husband for over seven years, the burden of proving that he knew she was alive at the time of the second marriage rests upon the State. Otherwise, the defendant would be required to prove a negative, which he could do only by going upon the stand and submitting to cross-examination. He would be forced to become a witness in his own case with all its possible consequences. On the other hand, the State could prove the fact affirmatively by any evidence direct or circumstantial that the jury might believe; as, for instance, that the defendant had been seen with his wife within the seven years, or that she had been seen in the neighborhood, or that some one had told him she was alive, or that her whereabouts were generally known in the community. Any one of these facts would tend to prove his guilty knowledge. To require a defendant to prove a divorce is essentially a different matter, and in
Lead Opinion
DOUGLAS, J., dissenting.
The defendant was indicted, under the Code, sec. 988, for bigamy. The admissions of the defendant were competent to prove the first marriage. S. v. Wylde,
The court charged the jury: "The burden is on the defendant to show that he did not know that his first wife was living for the seven years prior to his second marriage." In this there was no error. The Code, sec. 988, after prescribing that a second marriage, during the lifetime of the former husband or wife, is bigamy, and fixing the punishment therefor, contains the following proviso: "Provided, that nothing herein contained shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been living within that time, nor shall extend to any person who at the time of such second marriage shall have been lawfully divorced from the bond of the first marriage, nor to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction."
The burden is on the State to prove beyond a reasonable doubt both marriages, and that at the date of the second marriage the husband or wife of the defendant by the first marriage was still living. This completes the offense, but the proviso exempts the defendant, notwithstanding, from conviction and punishment if either one of three things, peculiarly within his knowledge, are shown —i. e., (1) that such former wife or husband had been continually absent for seven years at the date of the second marriageand shall not have been known by the defendant to have been living within that time; or (2) that the defendant had been lawfully divorced at the time of the (746) second marriage; or (3) that the first marriage has been declared void by any court of competent jurisdiction. These are matters of defense to withdraw the defendant from liability, notwithstanding proof that bigamy has been actually committed by a second marriage during the lifetime of the first husband or wife. These matters being set out in the proviso, withdrawing the *540 defendant from liability, by our uniform decisions they are not required to be negatived in the indictment, and, of course, the State is not required to prove what it is not called on to allege.
In S. v. Norman,
The burden is on the defendant to show as a matter of defense that his wife had absented herself for the space of seven years next before the second marriage, and that he was ignorant all that time that she was living. The authorities for this are abundant: S. v.Barrow,
Speaking of another (the second) ground of defense, allowed in the proviso, Lord Denman, C. J., said, in Murray v. Reg., 7 Q. B., 706, that it would be as reasonable to require the prosecution to deny that the statute had been repealed as to negative a divorce — one being as much a matter of defense as the other. The matters set out in the proviso are, as above stated, matters peculiarly within the knowledge of the defendant, and none more so than whether he was ignorant of his wife's existence at all times within the knowledge of the defendant, and none more so than whether he was ignorant of his wife's existence at all times within seven years before the second marriage. "In such cases . . . the negative is not to be proved by the prosecutor, but on the contrary, the affirmative must be proved by the defendant as matter of defense." Wharton Cr. Law, sec. 614; 1 Greenleaf Ev., sec. 79. In Rex v. Jarvis, 1 East., 643, Lord Mansfield said: "It is a known distinction that what comes by way of proviso in a statute must be insisted on, by way of defense, by the party accused; but where exceptions are in the *541 enacting part of the law, it must appear in the charge that the defendant does not fall within any of them."
All the authorities concur that neither the belief of the defendant, however honest, that the first spouse is dead, nor ignorance of his or her being alive for less than seven years, is a defense. Reg. v. Cullen, 9 C. P., 681; Com. v. Hayden,
No error.