| Ala. | Jan 15, 1870
The indictment charged that the defendant, having a wife then living, unlawfully married Pauline Dyer.
If he was guilty of the crime charged, the evidence shows that it was because of his former marriage with Sarah Coleman. She was used as a witness for the State, to prove her marriage with the defendant, as well as his confessions of having married the other. On a trial for bigamy, the first and true wife can not be admitted to give evidence against her husband. — Russell on Crimes, vol. 1, p. 218.
The record professes to set out all the evidence. There was none that the defendant married or cohabited with Pauline Dyer, the second wife, in Mobile county. Therefore, the first charge asked by the defendant, that upon the evidence he was entitled to acquittal, ought to have been given. — Revised Code, §§ 3599, 3941; Constitution, article 1, § 8.
The second charge asked by the defendant was erroneous, because it was immaterial whether the second marriage occurred in Mobile county or not, if there was cohabitation there.
The third charge asked by him was also properly refused, because the fear under which the defendant was supposed to be, was not imposed as an inducement to his marriage with Sarah Coleman, but arose from his arrest and prosecution for bastardy. In other respects it was abstract.
The charge asked by the solicitor ought to have been refused, for the reasons given by the court in explanation of it. Cohabitation, though evidence of marriage, can not make a void marriage valid.
The judgment is reversed, and the cause remanded.