2 § 10. Cohabitation and Repute.-The difficulties of strict proof of marriage have so weighed with the courts that they have quite generally recognized the rule that cohabitation and repute is admissible to prove a marriage in fact. It has been said in a number of cases, however, that cohabitation and repute, standing alone, is not sufficient to prove marriage, where it would result in proving a person guilty of bigamy.3 This was the common-law rule, and was based upon the principle that the presumption of innocence of crime overcame the presumption of marriage following cohabitation and repute. But even under this rule, evidence of cohabitation and repute, coupled with admissions of marriage, is sufficient to sustain a finding of actual marriage. It would seem that all doubts in regard to this question have been dispelled by the statutory provision that in bigamy cases marriage may be proved by such evidence as is admissible to prove marriage in other cases. And it is settled that marriage in other cases may be proved by cohabitation and repute. Evidence of cohabitation alone is not sufficient to establish marriage in a prosecution for bigamy; but it is not error for the court to refuse so to instruct when there is much other evidence tending to show marriage. As to whether marriage may be shown by general 2. People v. Hartman, 130 Cal. 487, 62 Pac. 823. See MARRIAGE. 3. Case v. Case, 17 Cal. 598 (suit for divorce on ground of adultery); People v. Anderson, 26 Cal. 129 (competency of witness on indictment for murder); White v. White, 82 Cal. 427, 7 L. R. A. 799, 23 Pac. 276 (suit for divorce on ground of adultery). 4. Case v. Case, 17 Cal. 598. 5. People v. Beevers, 99 Cal. 286, 33 Pac. 844; People v. Stokes, 71 Cal. 263, 12 Pac. 71 (charge of adultery). 6. See supra, § 9; People Stokes, 71 Cal. 263, 12 Pac. 71. 6 The dictum, per Henshaw, J., in the recent case of People v. Le Doux, 155 Cal. 535, 102 Pac. 517, to the effect that admissions of the defendant, together with proof of cohabitation and repute, are not sufficient evidence to establish marriage upon a charge of bigamy, seems not to be supported by the authority cited, and appears to be unsound in view of $1106 of the Penal Code. 7. White v. White, 82 Cal. 427, 7 L. R. A. 799, 23 Pac. 276; People v. Anderson, 26 Cal. 129; Case v. Case, 17 Cal. 598. See MARRIAGE. repute alone may be regarded as an unsettled question, though such evidence is certainly admissible as a circumstance tending to show marriage.s § 11. Burden of Proof and Presumption as to Former Spouse. In a prosecution for bigamy it is incumbent on the prosecution to prove not only the first and second marriages, but also to prove that the former husband or wife was living at the time of the second marriage." Hence, where a person was committed for bigamy without any proof that the woman to whom he was previously married was living at the time of his second marriage, the order of commitment was unauthorized.10 As we have seen, when the evidence shows that the former spouse has not been heard of for a period of five years, the statute sanctions a presumption that such spouse is dead.11 But the legislative provision affords no ground for the converse of the proposition, viz.: that when a party has been seen or heard of within five years, a presumption arises that he is still living. The existence of a party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date. If, for example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible, that he was living on the latter day, and the jury would in all probability find that he was. If, on the other hand, it were proved that he was in a dying condition, and nothing further was proved, they would probably decline to draw that inference. However, the issue on this point should be left to the jury to be determined, as a matter of fact, upon such reasonable inferences as the evidence supplies, free from any presumption of law. On a trial for bigamy, where the evidence merely proved that the 8. People v. Hartman, 130 Cal. 487, 62 Pac. 823. 9. People v. Feilen, 58 Cal. 218, 41 Am. Rep. 258. 10. Ex parte Baker, 4 Cal. App. 25, 86 Pac. 915. 11. See supra, § 6. first wife was living about three years prior to the day of the second marriage, it has been held that the evidence was insufficient to support a verdict of guilty.12 § 12. Punishment.-Section 283 of the Penal Code prescribes the punishment for bigamy as follows: "Bigamy is punishable by a fine not exceeding five thousand dollars and by imprisonment in the state prison not exceeding ten years." And section 284 of the Penal Code prescribes the punishment for anyone who marries the husband or wife of another as follows: "Every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the provisions of this chapter, is punishable by fine not less than five thousand dollars, or by imprisonment in the state prison not exceeding ten years.' It will be observed that the punishment, in so far as it relates to fines, may be greater in the case of marrying the husband or wife of another than in the case of bigamy; for while in the case of the former, it may not be less than five thousand dollars, in the case of the latter it may not exceed that sum. It may be remarked that by section 654 of the Penal Code it is provided that where an act or omission is made punishable in different ways by different provisions of the code, it may be punished under either of said provisions, but not under more than one. Therefore, a person supposed to be married and charged with marrying the husband or wife of another may be indicted either for bigamy under section 281 or for the felony prohibited by section 284, according as it may be easier to prove the former marriage of the accused or that of the person with whom the accused has now intermarried. 13 12. People v. Feilen, 58 Cal. 218, 41 Am. Rep. 258. See DEATH. 13. Commissioners' note, § 284, Penal Code. See CRIMINAL LAW. (B. R.) BILLS. See STATUTES. BILLS AND NOTES. See NEGOTIABLE INSTRUMENTS. BILLS OF EXCEPTIONS. See APPEAL AND ERROR, vol. 2, p. 82. BILLS OF LADING. BILLS OF PARTICULARS. See PLEADING. BIRDS. See ANIMALS, vol. 2, p. 1; GAME. BIRTHS. See HEALTH; PARENT AND CHILD. BLACKLISTING. BLACKMAILING. See LIBEL AND SLANDER; THREATS. |