State v. Goulden
| Citation | 47 S.E. 450,134 N.C. 743 |
| Parties | STATE v. GOULDEN. |
| Decision Date | 26 April 1904 |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rockingham County; McNeill, Judge.
Julius Goulden, alias Uriah Goulden, was convicted of bigamy, and appeals. Affirmed.
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.
C. O McMichael, for appellant.
The Attorney General, for the State.
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 seven years prior to his second marriage." In this there was no error. The Code (section 988), after prescribing that a second marriage during the lifetime of the former husband or wife is bigamy, and fixing the punishment therefor, contains the following proviso: "Provided that nothing herein contained shall extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to have been living within that time, nor shall extend to any person who at the time of such second marriage shall have been lawfully divorced from the bond of the first marriage, nor to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction." The burden is on the state to prove beyond a reasonable doubt both marriages, and that at the date of the second marriage the husband or wife of the defendant by the first marriage was still living. This completes the offense, but the proviso exempts the defendant, notwithstanding, from conviction and punishment, if either one of three things peculiarly within his knowledge, are shown; i. e. (1) that such former wife or husband had been continually absent for seven years at the date of the second marriage, and shall not have been known by the defendant to have been living within that time; or (2) that the defendant had been lawfully divorced at the time of the second marriage; or (3) that the first marriage has been declared void by any court of competent jurisdiction. These are matters of defense to withdraw the defendant from liability notwithstanding proof that bigamy has been actually committed by a second marriage during the lifetime of the first husband or wife. These matters being set out in the proviso, withdrawing the defendant from liability, by our uniform decisions they are not required to be negatived in the indictment, and, of course, the state is not required to prove what it is not called on to allege.
In State v. Norman, 13 N.C. 222, construing the act of 1790, now substantially the above section 988 of the Code (save that the punishment is not death, as was then the case), Henderson, C.J., says that the proviso therein "withdraws the case from the operation of the act," and the burden was upon the defendant to show the divorce, which in that case was the part of the proviso relied on. This ruling that the state is not called on to negative in the indictment matter of defense set out in a proviso when it withdraws a case from the operation of the body of the section has been cited and approved. State v. Davis, 109 N.C. 784, 14 S.E. 55; State v. Melton, 120 N.C. 596, 26 S.E. 933; State v. Call, 121 N.C. 649, 28 S.E. 517; State v. Newcomb, 126 N.C. 1106, 36 S.E. 147--in which last case the authorities are reviewed. The burden is on the defendant to show as a matter of defense that his wife had absented herself for the space of seven years next before the second marriage, and that he was ignorant all that time that she was living. The authorities for this are abundant. State v. Barrow, 31 La. Ann. 691; State v. Lyons, 3 La. Ann. 154; Stanglein v. State, 17 Ohio St. 453; State v. Abbey, 29 Vt. 69, 67 Am. Dec. 754; Fleming v. People, 27 N.Y. 329; State v. Williams, 20 Iowa, 98; 2 Wharton, Cr. Law (10th Ed.) § § 1704, 1705; 2 McClain, Cr. Law, § 1080. The state could rarely prove that a defendant was not ignorant that his wife was living, while he can as a witness in his own behalf testify that he was.
Speaking of another (the second) ground of defense allowed in the proviso, Lord Denman, C.J., said in Murray v. Reg., 7 Q B. 706, that it would be as reasonable to require the prosecution to deny that the statute had been repealed as to negative a divorce; one being as much a matter of defense as the other. The matters set...
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