130 Iowa 239 | Iowa | 1906
Such, in effect, was the position in which Fisher placed himself. We need not go to the length of holding that the statements made in the motion and affidavits appearing in this record are sufficient to convict the county attorney of any willful betrayal of professional confidence, and we do not understand counsel for appellant to contend for any such holding. It is enough that the officer placed himself in position to be open to such a charge, and that we make emphatic the declaration of his disqualification to act in the prosecution of his former client, under the circumstances appearing. Being disqualified, he should have moved the appointment of a substitute, as provided for in Code, section 304.
II. Some matters appearing in the record before us are of such character that they must enter into and have effect to control in large measure a further trial of the charge against defendant, if such trial shall be had. In view of this, we think it proper that we take note at this time of the more important thereof.
The objection was based upon section 4606 of the Code, which provides that neither the husband nor wife shall in any case be a witness against the other, etc. It seems clear to us that the preliminary evidence introduced by the state was sufficient to make out a prima facie case of former marriage on the part of defendant, the force and effect of which had not been interrupted by death or divorce. The certificate exhibited by defendant, and produced and identified in court, recites the marriage of ’Charles Eocker to Anna Mam-
III. As a witness on his own behalf, defendant testified that he came to this country from Germany about the year 1892; that about a year before coming he was married to a woman named Anna Decker, whom he left in Germany. He admits that there came with him to Illinois the woman named Anna Mammen, reference to whom had been made by witnesses for the state. He denies, however, that he ever introduced her as his wife, and denies having lived and cohabited with her as such while in Illinois. He denies parentage of the child there born to her. He admits that when he left Illinois and went to Minnesota, the said woman and child accompanied him, and that during part of the time before he came to Iowa he lived and cohabited with her in Minnesota; also that one or more children were there born to them. But
There is, of course, a presumption in favor of legality arising from naked proof that a marriage has taken place. But it is a presumption of fact, and may be overcome by proof, among other things, that one or both the parties was incompetent to enter into the relation. Accordingly the presumption must give way at once in the face of proof that the defendant had a former wife living and undivorced, and his incompetency to enter into the subsequent marriage is thus established. And we may concede that, in cases presenting a situation such as the record before us discloses, the prosecution must assume the burden to overcome the presumption as to legality. It is the argument for thé state that upon the whole record this burden was met; that, at least, sufficient appeared to take the case to the jury. And this we think is true.
To begin with, we -have the fact of the marriage of defendant to Anna Decker in 1891. This was sufficiently established by his own declaration. 19 Am. & Eng. Ency., 1201. Now, it is fundamental doctrine that the marital relation can be terminated or dissolved only by death or by formal decree of divorce entered by a competent court having jurisdiction of the subject-matter and of the parties. And, being continuous in character, when the relation is once shown to exist, it will be presumed as against the immediate parties' at least to continue. Such is the general'
The case is quite different, and for obvious reasons, where the subsequent marriage is by the faithful spouse. It is a matter of statute in this state, as it is in other states, that prosecution of a husband or wife as for bigamy may not be had where his or her spouse “ has continually remained beyond seas, or who has voluntarily withdrawn from the other and remained absent for the space of three years together, the party marrying again not knowing the other to be living within that time.” Code, section 4933, 4934. So, too, it is established doctrine at common law that, where one absents himself from home and is unheard of for a period of seven years, he will be presumed to be dead. Green-leaf Evidence, section 41; State v. Henke, 58 Iowa, 457. And there are many cases in the books holding that in such situation, and independent of any statute, if the faithful spouse shall marry again after a lapse of such period — or even a shorter period in some of the states — a presumption of innocence will be indulged to negative the presumption of a continuance of life on the part of the absent spouse. In
It has net been overlooked by us that there are occasions on which a resort to. presumptive evidence is proper to be indulged, even to support the subsequent marriage of a recreant spouse, where necessary to sustain the legitimacy of children, or in making disposition of property interests, and where by reason.of death, insanity, or other casuality, the facts are incapable of proof by direct evidence. In such cases the presumption is allowed in favor of innocent third persons,, and manifestly the principle involved can have no bearing to support the contention as now made for defendant in this case. Accordingly we shall do no more than to make reference to some of the reported cases in which the,.subject is discussed. Blanchard v. Lambert, 43 Iowa, 228, Ellis v. Ellis, 58 Iowa, 120; Gilman v. Sheets, supra; Barnes v. Barnes, 90 Iowa, 282; Leach v. Hall, 95 Iowa, 611; Parsons v. Grand Lodge, 108 Iowa, 6. And see In re Colton Estate 129 Iowa 542.
But, if it were possible to reach any' other conclusion
Having found such to be the fact, it would follow, as matter of course, that the evidence sought to be excluded was proper to be considered, for in such case no relation of husband and wife existed between the witness and defendant.
For the errors pointed out, the judgment is reversed, and the cause remanded, for further proceedings according to law.— Reversed.