State v. Goulden.

DOUGLAS, J., dissenting. The defendant was indicted, under the Code, sec. 988, for bigamy. The admissions of the defendant were competent to prove the first marriage. S. v. Wylde, 110 N.C. 500; S. v. Melton,120 N.C. 591; 2 McLain Cr. Law, sec. 1083, and cases cited in note 6; 2 Bish. Stat. Cr. (2 Ed.), sec. 610. It was therefore not error to admit evidence that when the defendant, about three weeks before the second marriage, stated his intention to (745) 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, sec. 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 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 marriageand 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 (746) 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 *Page 540 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 S. 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. S. v. Davis, 109 N.C. 780; S. v.Melton, 120 N.C. 591; S. v. Call, 121 N.C. 643; S. v. Newcomb,126 N.C. 1104, 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: S. v.Barrow, 31 La. 691; S. v. Lyons, 3 La. Ann., 154; Stangleinv. State, 17 Ohio St. 453; S. v. Abbey, 29 Vt. 69; 67 Am. Dec., 754, Fleming v. People, 27 N.Y. 329; S. v. Williams,20 Iowa 98; 2 Wharton Cr. Law (10 Ed.), secs. 1704, 1705; 2 McClain Cr. Law, sec. 1080. The State could rarely prove that a defendant (747) 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 out in the proviso are, as above stated, matters peculiarly within the knowledge of the defendant, and none more so than whether he was ignorant of his wife's existence at all times within the knowledge of the defendant, and none more so than whether he was ignorant of his wife's existence at all times within seven years before the second marriage. "In such cases . . . the negative is not to be proved by the prosecutor, but on the contrary, the affirmative must be proved by the defendant as matter of defense." Wharton Cr. Law, sec. 614; 1 Greenleaf Ev., sec. 79. In Rex v. Jarvis, 1 East., 643, Lord Mansfield said: "It is a known distinction that what comes by way of proviso in a statute must be insisted on, by way of defense, by the party accused; but where exceptions are in the *Page 541 enacting part of the law, it must appear in the charge that the defendant does not fall within any of them." All the authorities concur that neither the belief of the defendant, however honest, that the first spouse is dead, nor ignorance of his or her being alive for less than seven years, is a defense. Reg. v. Cullen, 9 C. P., 681; Com. v. Hayden, 163 Mass. 453; 28 L. A. R., 318; 47 Am. St., 468; Com. v. Mash, 7 Metc., 472. In 2 Wharton Cr. Law (10 Ed.), sec. 1705, it is well said: "`Men readily believe what they wish to be true,' is a maxim of the old jurists. To sustain a second marriage, and to vacate a first, because one of the parties believed the other to be dead, would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals." In this case the evidence is that the first wife had lived (748) in twenty or thirty miles of the defendant ever since he testified that he drove her off, and, though his testimony was that he had not heard of her for twenty-four years, except that he heard a year before his second marriage that she was dead, he showed no effort to verify that fact, and the State offered evidence tending to show that the defendant knew she was alive within seven years of the bigamous marriage. Indeed, he having driven her off, such involuntary departure being absence procured by the defendant himself, is not such "absence" as would have excused the defendant from inquiry even after the lapse of seven years. Parker v.State, 77 Ala. 47; 54 Am. Rep., 43. No error.