State v. Goulden

• Citation: 47 S.E. 450,134 N.C. 743
• Court: United States State Supreme Court of North Carolina
• Decision Date: 26 April 1904
• Parties: STATE . v. GOULDEN.

47 S.E. 450
134 N.C. 743

STATE .
v.
GOULDEN.

Supreme Court of North Carolina.

April 26, 1904.

BIGAMY — EVIDENCE — KNOWLEDGE OF EXISTENCE OF FIRST SPOUSE—BURDEN OF PROOF.

1. In a prosecution for bigamy, evidence that defendant had said about three weeks before the second marriage that he wished he could hear that his first wife was dead, so that he could be a free man, is competent to prove the first marriage.

¶ 1. See Bigamy, vol. 6, Cent Dig. §§ 43, 61.

2. In a prosecution for bigamy, in which defendant had testified that he drove his first wife away, his reasons for so doing were inadmissible.

3. Under Code, § 988, declaring that a second marriage during the life of the former husband or wife is bigamy, and providing that nothing therein contained shall extend to any person marrying a second time whose spouse shall have been continually absent for the space of sever) years, and shall not have been known by such person to have been living within that time, the burden is on defendant in a prosecution for bigamy to show that he did not know that his first wife, from whom he had separated, was living during the seven years prior to his second marriage.

4. Under the statute, absence of a wife, resulting from having been driven away by the husband, is not such absence as to excuse him from inquiry even after the lapse of seven years.

Douglas, J., dissenting.

Appeal from Superior Court, Rockingham County; McNeill, Judge.

Julius Goulden, alias Uriah Goulden, was convicted of bigamy, and appeals. Affirmed.

C. O. McMichael, for appellant.

The Attorney General, for the State.

CLARK, C. J. The defendant was indicted under Code, § 988, for bigamy. The admissions of the defendant were competent to prove the first marriage. State v. Wylde, 110 N. C. 500, 15 S. E. 5; State v. Melton, 120 N. C. 591, 26 S. E. 933; 2 McLain, Cr. Law, § 1083, and cases cited in note 6; 2 Bish. Stat. Cr. (2d Ed.) § 610. It was therefore not error to admit evidence that when the defendant, about three weeks before the second marriage, stated his intention to marry, and was charged with the existence of his first wife, he had replied, "I wish I could hear she was dead, so I could be a free man." The defendant stated that he drove his wife off. It was not error to refuse to permit him to give his reasons for so doing, for it was not matter pertinent to the issue.

The court charged the jury: "The burden is on the defendant to show that he did not know that his first wife was living for the

[47 S.E. 451]

seven years prior...