State v. Reilly

• Decision Date: 20 November 1916
• Citation: 99 A. 329,89 N.J.Law 627
• Parties: STATE v. REILLY.
• Court: New Jersey Supreme Court

99 A. 329

89 N.J.Law 627

STATE

v. REILLY.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1916.

Error to Supreme Court.

James P. Reilly, Jr., was convicted of bigamy, and, the conviction being affirmed on error to the Supreme Court (88 N. J. Law, 104, 95 Atl. 1005), he brings error. Affirmed.

William R. Wilson, of Elizabeth, for plaintiff in error.

PARKER, J. We conclude that the Judgment of the Supreme Court, affirming the conviction in the Union quarter sessions, should be itself affirmed, and concur in the opinion delivered for the Supreme Court by Mr. Justice Bergen, except in the particular now to be specified.

At the trial the defendant requested the court to charge:

"That the burden of proof that a person charged with bigamy has not been actually absent from his wife for five years, and that she was known to him to be living within that time, is on the state, and not on the defendant."

The Supreme Court held that the request was sufficiently complied with by charging the burden of proving that the first wife was alive, "in connection with what the court said on the same subject immediately following," which, as the Supreme Court held, "put upon the state the burden of proving affirmatively and beyond a reasonable doubt that the defendant had not been continually absent from his wife for five years and that she was known to him to be living within that time."

Our examination of the charge leads us to the view that the request was not sufficiently complied with. The matter "immediately following" is undoubtedly the portion of the charge where the judge said that defendant would be innocent of bigamy, if he did not know that his wife was alive, and if it appears that he had not heard from her during a period of five years prior to his second marriage. This is a very different thing from saying that the state must prove that he did know. We think that this part of the opinion is not justified by the record.

But this does not lead to a reversal, for we consider that defendant was not entitled to the request in the form in which it was made, because it called for the imposition of the burden on the state of showing, both that defendant had not been continually absent from his wife for five years, and that she was known to him to be living within that time. If defendant was entitled to the second branch of this request, as to which we express no opinion, still he was not entitled to the first. Our statute (section 52 of the Crimes Act; Comp. St. 1910, p. 1762, § 52) is substantially similar to the English act (see Bish. Stat. Crimes, § 581), and dissimilar to the New York act, which puts the exception in the enacting clause. Fleming v. People, 27 N. ST. 330. The Supreme Court properly held that under our act the indictment need not negative the exception. There is, of course,...