Barbara's condition, and bemeaned and abused him. Defendant made light of witness and Barbara. He said that witness took the matter too much to heart, and told her to send her other son-in-law, Mr. Sadbury, or some other man, to talk to him. During April, May and June, 1879, the defendant and his wife stayed all night at witness' house as often as once or twice a week. He never stayed there all night except when his wife was with him, and he and his wife always slept together, or, at least, went to bed together. Defendant has never visited the house of witness since she informed him of Barbara's pregnancy. Previous to that they had always been friendly. On her cross-examination the witness did not remember she accused the defendant of being the father of the child, or whether he denied it or not. Nor could she say whether she told him she was going to take Barbara before a magistrate and make her swear who the child's father was, and make the father support it. Neither could she state whether the defendant said the father of the child ought to support it. If she had made these statements at the former trial of the case, they were true Defendant's counsel asked the witness if she stated that the defendant made light of the idea that he was the father of the child; to which she replied in the affirmative. Several young men were with Barbara during the year 1879: one of them brought her home on the 4th of July, of that year, from a distance of twenty-five miles. Another one came occasionally to witness' house. Mr. Sadbury, who was also a son-in-law of the witness, lived about a mile distant, and Barbara stayed at his house for about two weeks, when his wife was sick. In 1879 Mr. Sadbury and Mr. Frost cultivated land on the place of witness, and were frequently about her house. One night in 1879 Sadbury brought his wife there, and slept in the same room with Barbara and the rest of the family. There was but one room in the house. On re-examination, the counsel for the prosecution desired the witness to state whether the defendant made light of her and Barbara, or of the idea that he was the father of the child. The witness replied that it was of her and Barbara the defendant made light. Mr. Frost was a married man.

The defence introduced no evidence. This appeal is from a second conviction of the appellant. In 10 Texas Circuit Appeals, the case is reported on the former appeal.

WHITE, P. J. On the former appeal in this case, which was reversed, it was held that "in the trial of a man for adultery, the testimony of his paramour as a witness is that of an accomplice or particeps criminis, and will not support his conviction unless corroborated by evidence tending to connect him with the offense. On this appeal the question for our determination, and the only question necessary to be determined, is the sufficiency of the evidence upon which the second conviction rests. We have carefully compared the statement of facts now before us with that shown on the former appeal, and the striking point of difference between the two is not that the corroborating evidence here is stronger than before, but that the evidence as now exhibited only tends to strengthen the appellant's case on the probabilities of guilt, in that (outside the evidence of the accomplice) it furnishes almost if not quite as strong circumstances against Mr. Sadbury, another brother-in-law, and also brings within the range of competitive suspicion as to the paternity of the alleged offspring of the adulterous intercourse a new party, to wit, a certain Mr. Frost, a married

1

p. 402.

2 See P. C., art. 335.

3 10 Tex. (App.) 402.

man, with whom the prosecutrix had "hoed corn one day during the summer of 1879, when corn was about waist high, and they were alone in the field and no one was near." We do not hesitate in saying again that in our opinion the corroborating evidence tending to connect the accused with the commission of the offense charged is insufficient to support the verdict and judgment; wherefore the judgment is reversed and the cause remanded.

Reversed and remanded.

§ 21. Bigamy-First Marriage Void. If the former marriage was void, it is not bigamy to contract a later marriage.1

In R. v. Butler, the prisoner was tried before Mr. Justice LAWRENCE at the July sessions at the Old Bailey, in the year 1803, for bigamy in marrying Elizabeth Field, his first wife, Lydia Blackwell, being still living; he being for the said felony apprehended at the parish of La George, in the county of Middlesex. It was proved that the prisoner was married on the 13th of February, 1791, to Lydia Blackwell, at the parish church of Sumring, in Berkshire, by license, and that the woman was living on the 8th of June, 1803; and that on the 14th of December, 1800, the prisoner married Elizabeth Field, at St. Botolph, Bishopgate, and was apprehended for this bigamy at the parish of St. George, Middlesex.

The prisoner in his defence proved that he was born on the 2d of January, 1771, and that his father was then alive, and insisted that his first marriage was void, as it was not proved to have been by the consent of his father. The learned judge told the jury that he thought the marriage was to be presumed valid, unless the prisoner proved that he had not that consent, but saved the point for the consideration of the judges, and under such direction the prisoner was found guilty.

The case was submitted to the consideration of the judges in Michaelmas term, 25th of November, 1803. It seems that the certificate of the marriage mentioned that the prisoner was married by license, and did not express that the marriage was by consent of parents or guardians. And all the judges (except HEATH, J., who was indisposed), were of opinion that as it was clearly proved that the prisoner was under age at the time of the marriage, and as there were no circumstances from which consent could be presumed, the conviction was wrong.

§ 22. Former Marriage Void - Other Instances. Where A. is indicted for bigamy in marrying C., his first wife B. being then living, it is a good defence that at the time A. married C. and B. he had another wife D., livingfor the marriage with B. was void. So where A. marries B. and afterwards during B.'s life marries C., and still afterwards when B. is divorced, but during C.'s life marries D., the last marriage is not bigamy because the second was void.

§ 23.

Same-Presumption.

Where a woman is indicted for bigamy in marrying A. when B., her husband, was still alive, proof of the cohabitation of B. with another woman, his reputed wife, before the time of B.'s marriage with the prisoner, and of such reputed wife being alive after that marriage, will be considered sufficient evidence of a prior marriage to warrant an acquittal.5

1 R. v. Dent, 1 C. & K. 98 (1843); Shafher v. State, 20 Ohio 1, (1851).

2 R. & R. 61 (1803).

State v. Goodrich, 14 W. Va. 834 (1878). 4 Halbrook v. State, 34 Ark. 511 (1879). 6 R. v. Wilson, 3 F. & F. 119 (1862).

§ 24.

Second Marriage Must be Valid.- To convict of bigamy the second marriage must be valid according to the laws of the State where it takes place.1

-

§ 25. Second Marriage Must take Place Where Crime Charged. Where the second marriage takes place out of the State in which the charge is brought the crime can not be punished.2

In People v. Mosher,3 the prisoner married a wife in Pennsylvania, and then left her and went to Canada, and there married another woman whom he took to New York and lived with her there; it was held that this was no offense against the laws of New York.

$ 26.

Divorce Prohibiting Second Marriage - Violation of Decree. One who has been divorced from his wife at her petition, and prohibited from marrying again without leave of court is not guilty of bigamy in marrying again without such leave.

In People v. Hovey, the defendant was indicted for bigamy. He admitted both marriages, but set set up a divorce from the first wife obtained by her on the ground of his adultery. The decree declared that "the parties and each of them are freed from the obligation thereof," but contained a clause prohibiting the defendant from marrying again. It was held that the defendant by marrying again was not guilty of adultery. "The question," said SELDEN, J., "presented is whether in case of a dissolution of marriage for adultery, the party charged with the offense, if he or she marries again, is within the penalty of the act against bigamy. This section provides that 'every person having a husband or wife living, who shall marry any other person,' shall be adjudged guilty of bigamy. Can the defendant, after the decree dissolving his marriage with his first wife for his own adultery, be said to have had a wife living? This is the whole question.

"The terms husband and wife have a very definite and precise meaning. They are descriptive of persons who are connected together by the marriage tie, and are significant of those mutual rights and obligations which flow from the marriage contract. Until those obligations are assumed there is no wife, and the term is then applied, not merely to describe a woman who has been married, but as expressive of the relations existing between her and her husband. So long as that relation continues, she is properly a wife; when that ceases, the term is no longer applicable. The decree dissolves the marriage, and declares that each party is freed from its obligations. The marriage contract, therefore, is at an end; not only the complainant in the chancery suit, but the defendant also, is absolved from all the obligations arising out of that contract. The relation of the parties, consisting in their mutual rights and duties, no longer exists; and it would seem to follow, that the words husband and wife, used to describe that relation, have ceased to be applicable. Certainly the former wife, as to whom the dissolution of the marriage is entirely unlimited, can not be said after this decree to have had a husband living; for she might marry again, and thus, if that were so, have two lawful husbands at the same time. But husband and wife are correlative terms, so defined by lexico

1 People v. Chase, 27 Hun, 257 (1882); Bashaw v. State, 1 Yerg. 177 (1829).

2 State v. Barnett, 83 N. C. 615 (1880).

8 2 Park. 195 (1855).

4 Com. v. Lane, 113 Mass. 458 (1873). And

see Com. v. Richardson, 126 Mass. 34. Nor does he, under such circumstances, commit adultery. Com. v. Putnam, 1 Pick. 136 (1822). 55 Barb. 117 (1848).

62 R. I. (2d ed.), p. 573, sec. 8.

graphers, which implies that whenever one can be properly applied, there must be a person to whom the corresponding term is applicable. If, therefore, the defendant is no longer the husband of his former wife, then she is no longer his wife.

"It was urged, upon the argument, that while the dissolution of the marriage by the decree was total and absolute on the part of the complainant, it was only partial as to the defendant, who remained subject to a portion of the restraints arising from the marriage contract. In answer to this it may be said, that the obligations of the marriage relation are mutual; that the abrogation of them on one side, necessarily involves their annihilation upon the other; and accordingly the decree itself provides, that each party is freed from these obligations. The restraint of the defendant as to a second marriage, arises not out of the marriage contract, or from any continuing obligation to his former wife, but exclusively from the positive prohibition of the statute."

§ 27. Bigamy-Evidence Insufficient to Establish- Brown v. State. — In Brown v. State,1 the defendant was indicted for unlawfully marrying one John Tunstall, having a husband then living. Her conviction was reversed on the facts on appeal, the court saying: "The only evidence in this cause is that of one Sally Peoples, a negro woman, that she was present 'about two years after the surrender' (in what place or county not mentioned), when defendant was married to one Noah Wilson; that they 'lived together sometime as husband and wife, and afterwards separated; that they had been separated for four years, going on five, and that the marriage ceremony was performed by one Asa Sanders, a colored man who followed preaching, and read the "testimony' to the parties.' No license was proved, or other evidence in regard to this alleged first marriage was produced.

"A similar ceremony was proved by same witness as having been performed 'last Christmas was a year ago' (A. D. 1873), between defendant and one Joe Tunstall (without mention of any place or county), 'by one Nowal Coleman, a colored man, who read the testimony to them.'

"The bill of exceptions, of which we have given the entire substance, sets out that this was 'all the testimony in the cause, and Sallie Peoples the only witness examined.' No attempt was made to produce evidence of license, or to account for the non-production of it, in reference to either of the ceremonies. Nor was there any evidence that Nowal Coleman was, or pretended to be, or was supposed to be, a preacher, minister, or official of any sort, or that the ceremony performed by him was followed by the cohabitation of defendant and Joe Tunstall. The latter affair may have all occurred in sport. Certainly, not enough is proved to show that it was of so serious a character as to implicate the defendant by it, in the crime of bigamy. The court charged 'that marriages in cases of this kind, could be proven by cohabitation, living together, or the confessions of the parties; that it was like any other civil contract in this respect, and that it was not necessary to show by proof that the requirements of the statute were conformed to, to establish a marriage in either case; that it was not necessary to show the authority of the parties who solemnized the marriage,' etc. The first part of the charge, that marriage in a case of this kind can be proved by cohabitation alone, is not correct. If it was, every case of living in fornication or adultery would establish a marriage or case of bigamy. It might be true in some cases that it is not necessary to show that the re

1 52 Ala. 338 (1875).

quirements of the statute have been conformed to, in order to establish a marriage, and that the authority of the person who performs the ceremony need not be proved. But the charge must be construed with reference to the evidence. And it is not correct to so charge a jury in a case like the present. The only witness was an ignorant negro woman, who probably was unable to understand the meaning of what was actually said or done. No words or expressions are proved to have been used on the occasion that are employed in contracting marriage and no cohabitation afterwards is shown by the evidence. The maxim that every one is to be presumed innocent until the contrary is proved is of little value if the law did not require, in such an instance as this, either proof of a marriage license, or official authority in the person performing the ceremony, or something else to establish that the affair in which the parties were engaged was seriously entered into as a contract of marriage between them. For the errors indicated, the judgment is reversed and cause remanded. Defendant must remain in custody until discharged by due course of law."

§ 28. Mistake as to Death of First Spouse. As to the defence that the second marriage was entered into under the belief that the first spouse was dead, see the former volume of this work.1

$ 29. - Marriage of Infants-Renunciation. -In Michigan, by statute, where a marriage takes place when either of the parties is under the age of legal consent, if they separate during marriage and do not afterwards cohabit, the marriage is declared void. It is held under this statute that "age of legal consent" means the age laid down by statute, eighteen for males, and sixteen for females.2

- In State v. Keesler,3 in

§ 30. Incest - Not Indictable at Common Law. the Supreme Court of North Carolina, it is said: "The defendant is indicted for incest. This offense was not indictable at common law, and as we have no statute in this State declaring it to be a criminal offense, this indictment can not be maintained. It is related that in the time of the Commonwealth in England, when the ruling powers found it for their interest to put on the semblance of extraordinary strictness and purity of morals, incest and willful adultery were made capital crimes; but at the Restoration, when men from the abhorrence of the hypocrisy of the late times fell into a contrary extreme of licentiousness, it was not thought proper to renew the law of such unfashionable rigor; and these offenses have been ever since left to the feeble coercion of the spiritual court according to the canon law. In most of the States of the Union incest is made an indictable offense by statute. Perhaps its rare occurrence in this State has caused the revolting crime to pass unnoticed by the Legislature." And the same has been held in Texas." § 31. Incest-Assent Necessary- Force. - Assent is necessary to the crime of incest. It is not incest where the intercourse is accomplished by force."

1 Ante, Vol. III., ch. VII., Title" Mistake."

2 People v. Slack, 5 Mich. 1933 (1867). 3 78 N C. 489.

4 4 Bl. 6f; 2 Tomlin. L. D. 160; Bish. Stat. Cr., secs. 725, 728; Bish. Mar. & Div., secs. 313, 315.

Tuberville v. State, 4 Tex. 128 (1849.) People v. Harriden, 1 Park. Cr. 344 (1852); People v. Jenness, 5 Mich. 305; DeGroat v. People. 39 Mich. 124 (1878); State v. Ellis, 74 Mo. 321 (1881); State v. Thomas, 53 Iowa, 214 (1880).

3