State v. Hendrickson

• Citation: 67 Utah 15,245 P. 375
• Decision Date: 25 March 1926
• Docket Number: 4350
• Court: Supreme Court of Utah
• Parties: STATE v. HENDRICKSON

245 P. 375

67 Utah 15

STATE v. HENDRICKSON

No. 4350

Supreme Court of Utah

March 25, 1926

Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.

Victor N. Hendrickson was convicted of polygamy, and he appeals.

AFFIRMED.

William J. Lowe, of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

THURMAN J. GIDEON, C. J., and FRICK, CHERRY, and STRAUP, JJ., concur.

OPINION

THURMAN, J.

Appellant was convicted in the district court of Box Elder county of the crime of polygamy and sentenced to an indeterminate term of imprisonment in the state prison. Both the lawful marriage and the polygamous marriage were admitted by the defendant and it was also admitted that he had not been divorced from his lawful wife when the polygamous marriage was solemnized. The only defense urged by appellant under his plea of not guilty was that he entered into the second marriage in good faith under the honest belief, induced by what he believed to be credible information, that his lawful wife had procured a divorce. Much evidence was offered by defendant to prove his good faith in that respect, but upon objection by the district attorney the offered evidence was rejected by the court on the ground that it was irrelevant and immaterial. The court based its ruling upon the ground that the good faith and intention of the accused is not a defense under the statute of this state making polygamy a crime. The statute referred to (Comp. Laws Utah 1917, § 8086) reads as follows:

"Every person who has a husband or wife living, who hereafter marries another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman, is guilty of polygamy, and shall be punished by a fine of not more than $ 500, and by imprisonment in the state prison for a term of not more than five years; but this section shall not extend to any person by reason of former marriage whose husband or wife by such marriage shall have been absent for five consecutive years, and is not known to such person to be living, and is believed by such person to be dead, nor any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court, nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract."

The court instructed the jury, in effect, that the defendant had offered evidence which if admitted might tend to show good faith on the part of defendant, but that such evidence had been excluded upon the theory that good faith on the part of defendant at the time of his second marriage was no defense, and that the jury should not consider such evidence. With this statement on the part of the court, it will not be necessary to state the evidence offered by defendant with the same detail that might have been necessary if such instruction had not been given. The evidence offered was concerning matters communicated to defendant before his second marriage and was to the effect that he had received a letter from his wife in California informing him that she had filed a complaint in that state against him for divorce; also that defendant had received a letter from the clerk of the superior court of Orange county, Cal., to the effect that defendant's lawful wife had commenced an action against him for divorce; also that defendant's lawful wife had returned to Utah and had demanded possession of certain property belonging to defendant, claiming that she had been divorced from defendant and the property had been awarded to her in the final decree; that defendants' lawful wife had been introduced to a witness by one De Fries as the wife of De Fries, she at the time informing the witness that she had been divorced from defendant. Finally, defendant offered to prove that he had received information from numerous people living in Eureka that De Fries and Mrs. Hendrickson were living together in Eureka as husband and wife and that they had made the statement that Mrs. Hendrickson had been divorced from defendant.

We have now stated the main features of the offered evidence upon which defendant relied to establish his innocence. As before stated, the evidence was rejected on the ground that it was irrelevant and immaterial under the statute making polygamy a crime. The rejection of the evidence offered is assigned as error and is the principal question to be determined on this appeal.

Counsel for appellant quotes and relies on the following passage from Wharton, Crim. Law, by Kerr (11th Ed.) § 2060, found in volume 3:

"Credible information to the effect that the first wife had obtained a divorce, raising in the husband an honest belief in that fact, induced by reasonable diligence to ascertain the truth, constitutes a complete defense to a charge of bigamy for having remarried."

While the excerpt quoted appears to the writer as being at least a humane rule, especially in felony cases, unfortunately it is not supported by the only authority cited in the note. Reynolds v. State, 78 N.W. 483, 58 Neb. 49. The case cited by Wharton was a bigamy case. The only language in the opinion in that case that appears to have any relevancy to the question under consideration appears on page 484 (58 Neb. 51), where the court says:

"There are, it is true, cases which hold that an honest belief in the death of a former husband or wife, when such belief is reasonably grounded, is a defense to a prosecution for bigamy; but, if the doctrine of these cases is sound, which we do not concede, it has no application whatever to the facts of this case." (Italics ours.)

In view of that statement it can hardly be contended that the Reynolds Case supports the rule announced by the distinguished author above referred to.

Appellant also quotes the following from 2 Cyc. Crim. Law, Brill § 1130:

"The statutes do not require any specific criminal intent in bigamy, but all that is necessary is that a party shall intentionally marry again when he knows he is already legally married to another person.

"The cases are in conflict as to whether a bona fide belief that the former spouse is dead will constitute a defense to a charge of bigamy."

The notes referred to by the author show the great majority of cases against appellant's contention.

In Chapman v. State, 179 S.W. 570, 77 Tex. Crim. 591, the fourth headnote reflects the opinion and holding of the court:

"One who marries another under the honest belief that he has been divorced * * * is not guilty of bigamy."

Note 18 referred to in the text quoted from Brill mentions numerous cases from which it appears that the great majority of the cases in this country are opposed to the rule that honest belief in the death or divorce of the lawful spouse is a defense to a prosecution for bigamy.

Counsel for appellant also quotes from 7 C. J., at page 1165, the following:

"In a number of jurisdictions it is held that an honest belief, reasonably entertained, that a valid divorce has been granted, will constitute a defense to a prosecution for bigamy."

The passage just quoted is, however, immediately followed by the author in the same paragraph by the following statement:

"The weight of authority, however, is to the contrary. The view being taken [that] where a statute has fixed the exceptions, it must be held to exclude other exceptions not named."

Baker v. State, 126 N.W. 300, 86 Neb. 775, 27 L. R. A. (N. S.) 1097, cited by appellant, is very much in point. The second headnote states the rule announced by the court:

"In a prosecution for bigamy, when it appears that the first wife is still living, it is erroneous to exclude evidence offered by the defendant tending to show that prior to his second marriage he was credibly informed that his first wife had obtained a divorce, and that he had sufficient reason to believe and did believe the information so received, and relied thereon in good faith."

The annotation as reported in L. R. A. supra, is illuminating. Many cases are cited and reviewed. It is impracticable for us to review them here. The great majority of them opposed the rule permitting honest belief as a defense.

Appellant quotes the following from 3 R. C. L., p. 802:

"According to the weight of authority in this country the fact that one charged with bigamy believes in good faith that he has been lawfully divorced from his first wife constitutes no defense. The theory seems to be that the statutes are so drafted as to cause persons about to marry to take no chance on the question. The statute requires them to know the facts. In this view care and diligence of the defendant to ascertain whether the former marriage has in fact been dissolved by divorce and the reasonableness of his mistaken belief could not aid a defense based on such belief. The statutes usually contain an express grant of immunity where a divorce has been obtained and this of itself is evidence that the lawmakers intended to insist on the divorce itself as a defense and that no further exceptions...