Russell v. State

• Decision Date: 11 February 1899
• Citation: 49 S.W. 821,66 Ark. 185
• Parties: RUSSELL v. STATE
• Court: Arkansas Supreme Court

49 S.W. 821

66 Ark. 185

RUSSELL v. STATE

Supreme Court of Arkansas

February 11, 1899

Appeal from Hempstead Circuit Court, JOEL D. CONWAY, Judge.

STATEMENT BY THE COURT.

Appellant was indicted for bigamy. He demurred to the indictment, but in his argument does not insist upon the demurrer, which we do not discuss here. We think the indictment sufficient. He was tried, convicted and sentenced for three years in the penitentiary. He appealed to this court.

The evidence showed that when appellant married a second time his first wife was living, from whom he had not been divorced. The appellant sought to show in defense that at the time of his second marriage he believed in good faith that a divorce had been granted him from his first wife, and that he did not intend to violate the law; but the court refused to allow such proof.

The defendant offered in evidence the following certificate "State of Arkansas, County of Nevada. November 22, 1898. This is to certify that the circuit court of the aforesaid county granted the said Manney Russell a divorce from his wife, Ida Russell, and she has no interest in his property. Witness my hand. W. J. Munn, Circuit Clerk, per A. J. Fulton Deputy." The court refused to allow this to be read to the jury, to which defendant excepted.

The defendant offered to prove that he had paid one W. H. Booth to procure him a divorce from his first wife, Ida Russell and that a fraud had been practiced upon him, by which he was induced to believe, and did believe, at the time of his second marriage, that he had been divorced from his first wife; all which the court refused to allow. It also refused to allow proof of defendant's good character, to all which he excepted.

The court refused instructions in keeping with and based upon the theory in his (defendant's) offer of evidence to show that he believed, when he was married the second time, he had been divorced from his first wife; to which the defendant excepted.

The court then read to the jury the statute on bigamy, and gave the following instructions: "All law independent of evidence, is in favor of innocence, and the guilt of the accused must be fully proved, and in so doing the jury will take into consideration all of the facts in the case; and arriving at your verdict, you must take into consideration the manner and demeanor of the witness on the stand, as to the willingness or unwillingness in testifying one way or the other; and, after weighing his testimony, you may believe it in whole or in part, or you may disbelieve it in whole or in part, or you may give it just such weight as you think it entitled to. Upon the whole case, if you entertain a reasonable doubt as to the defendant's guilt, you should give him the benefit of the doubt, and acquit him; it being the burden of the state to prove beyond a reasonable doubt the guilt of the prisoner. If you believe that the defendant is guilty of bigamy, it will be your duty to say so: 'We, the jury, find the defendant guilty, and assess his punishment in the state penitentiary for a period of' not less than three years or more than seven. If you have a reasonable doubt as to his guilt, you will find him not guilty. The burden is on the state to prove beyond a reasonable doubt all the material allegations in the indictment." To the ruling and judgment of the court in giving these instructions, the defendant excepted.

Affirmed.

J. E. Cook and L. A. Byrne, for appellant.

Criminal intent is a necessary ingredient of bigamy, and an honest mistake as to the fact of the death of a former wife is a good defense. Bish. Stat. Cr. §§ 596, 596b, 596a, note 5. The decree of care required of the defendant and his motives are questions for the jury. Bish. Stat. Cr. § 132; 46 Ind. 459; 13 Tex.App. 76. The evidence as to defendant's good character was improperly excluded. 28 Ark. 155.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

Bigamy is a purely statutory crime in this state, and is committed whenever a person marries a second time, having a living and undivorced spouse. The intent is then presumed, and mistake is no defense. Sand. & H. Dig. §§ 1480, 1482; Undh. Cr. Ev. § 398; 32 Ark. 205; 7 Met. 472; 98 U.S. 145, 167; 25 Minn. 29; 57 Barb. 625; 35 A. 352; 68 Vt. 414; 40 N.E. 846; 29 Hun, 628; 58 Ia. 165; 1 McClain, Cr. Law, § 128; 6 Cow. 512; 7 Blackf. 572; 63 Mo. 570; 5 McLean, 242; 34 W.Va. 88; 16 R. I. 403; 68 Miss. 347; 163 Mass. 103; 36 Ark. 38; 70 Mo. 635; 40 Ark. 480; 13 Bush (Ky.), 318; 11 L. R. A. 530; 139 Pa. 247; L. R. 2 C. C. 154; 44 Ia. 45; 2 Met. 190.

OPINION

HUGHES, J., (after stating the facts.)

Section 1480, Sandels & Hill's Digest, provides: "Every person having a wife or husband, living who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy."

"Sec. 1481. The last preceding section shall not extend to the following persons or cases:

"First. To any person, by reason of any former marriage, whose wife or husband by such marriage shall have been absent for five successive years, without being known to such person within that time to be living.

"Second. To any person whose wife or husband has been absent from the United States for the space of five years.

"Third. To any person whose former marriage has been dissolved by a court of competent authority.

"Fourth. To any person whose former marriage has been pronounced void by the decree or sentence of a court of competent authority, on the ground of the nullity of the marriage contract.

"Fifth. To any person by reason of any former marriage contract by such person, within the age of legal consent, and which has been annulled by a decree of a court of competent authority."

Section 1482 provides: "If any unmarried person shall knowingly marry the husband or wife of another, in any case in which said husband or wife would be punished according to the foregoing provisions, such person, on conviction, shall be subject to the same punishment as is prescribed in cases of bigamy.''

We find that the rulings of the court were correct in refusing to allow proof that the defendant believed he had been divorced from his first wife at the time of his second marriage, as this was no defense. The cases cited by the attorney general in his brief sustain the ruling of the court upon this question. These cases are to the effect that "the material facts of the crime of bigamy are the first and second marriages, and the...