88 N.J.L. 104 | N.J. | 1915
The opinion of the court was delivered by
The defendant was convicted of bigamy. His first wife lived with him one week; they never saw each other for six years prior to his second marriage, and the defendant testified that he was told by her mother that she was dead before his second marriage. The defendant, having brought the record here, has assigned errors thereon, and also filed specifications of causes under sections 136 and 137 of our Criminal Procedure act.
The first point made is, that the indictment was defective and should have been quashed, a motion therefor having been made before the jury was sworn, and the same questions raised by a request to charge which was refused by the trial court and an exception thereto sealed. The defect alleged is, that the indictment does not aver that the defendant is not included in the class of persons which the statute exempts from its operation. The statute referred to is section 52 of the act entitled “An act for the punishment of crimes” (Revision of 1898). 2 Oomp. Stat., p. 1743. This section declares ($my person who having a husband or wife living, and marries another person, shall be guilty of bigamy, and punished by fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding ten years, or both; but nothing in this section contained shall extend to any person whose husband or wife shall be continually remaining within the United States of America for the space of five years together, or whose husband or wife shall absent himself or herself, the one from the other, for the space of five years to
The next point argued is, that it was error to permit the justice of the peace who performed the marriage ceremony between the defendant and his first wife to testify that he was a justice of the peace at the time, the contention being,
The next point is, that in deciding this question, the trial court said: “If this man never occupied any official position he led those people to believe that he was an officer and he performed the ceremony and they subsequently cohabited, lived together as man and wife, and then subsequent to that time the defendant in this case married another woman during the life of the first woman whom he married, he would have been violating the law.” The reason which the trial judge gives as a basis for his ruling is not error if the determination is a correct one. The reason above given was not an instruction to the jury, but only that of the court for the admission of the evidence which was properly admitted and therefore it is not necessary to now determine whether the statement was correct in law or not.
The third point argued is, that the judge did not properly define a reasonable doubt. What the court said was: “Now a reasonable doubt is not any doubt; it is a doubt which one entertains after he has considered all of the testimony pro and con; that is, all of the testimony for the defendant and against the defendant, and after considering it, and giving it all the attention and the weight to which it is entitled, then, if a reasonable doubt rests upon your minds, you are to give the benefit of that doubt to the defendant.” This instruction must be read in connection with what the trial court said immediately preceding the matter challenged, which was, “that the jury ought to' feel that the defendant is guilty beyond a reasonable doubt, and if a reasonable doubt exists in their minds, they should of course give the benefit of that doubt.” Taking the entire charge on this point, we think there was no error.
The next point is, that it was error to refuse to charge as requested “that the burden of proof that a person charged with bigamy has not been continually absent from his wife for five years, and that she was known to him to be living within that time, is on the state and not on the defendant.” We think that this request was sufficiently complied with when the jury were instructed, as they were, that the state “must prove affirmatively and beyond a reasonable doubt that the first husband or wife was alive at the date of the marriage. This is not presumed as a matter of law, from proof that he or she was alive at a prior date, for the presumption that the accused was innocent will nullify the presumption of the continuance of life. Hence, in the absence of direct evidence that the earlier spouse is alive when the later marriage was solemnized, the jury must acquit.” This charge taken in connection with what the court said on the same subject immediately following put upon the state the burden of proving affirmatively and beyond a reasonable doubt that the defendant had not been continually absent from his wife for five years and that she was known to him to be living within that time.
It is also argued that there was error in refusing to allow a witness to aifswer this question: “Did you have any conversation with Mrs. Hobson, the mother of xkda Hobson, in the city of Paterson after the marriage of Ada and James P. Reilly?” and also this question, “Did Mrs. Hobson, the mother of iVda Hobson, on any occasion when you saw her, state to you that her daughter Ada was dead?” These questions and two others of like nature were overruled, and we think properly so, because the testimony related to a conversation between the witness and Mrs. Hobson, the mother of Ada, not had in the presence of the defendant or of Ada, and such a conversation could not excuse the defendant. There was a motion in arrest of judgment which was denied, based upon the insufficiency of the indictment, the reasons urged being those considered and disposed of in the earlier part of this opinion. We have examined the 'other points raised and find no merit in them. The judgment will be affirmed.