State v. Ackerly

Munson, J. The charge is bigamy, and the facts are agreed upon. The statute creating the offence' provides that it shall not extend to “a person whose husband or wife has been continually beyond the seas or out of the state for seven years together, the party marrying again not knowing the other to- be living within that time.” V. S. 5059. The case presented does not bring the respondent within the exception. It is urged, however, that the statute ought not to be construed to include cases where there is an honest belief in the death of the husband or wife, entertained upon reasonable grounds. This claim is not based upon anything contained in the statute, but on the general proposition that an intention to penalize an act that results from an ignorance of fact not due to negligence, ought not to be presumed. There are many statutes in every jurisdiction that make the doing of certain acts criminal, without words bearing upon the knowledge or intent of the doer; and in prosecutions under statutes of this character' it is ordinarily held that ignorance of the fact which makes the act criminal is not a defence. See [72] 12 Cyc. 148, 157, 158. This rule has been applied in a great variety of cases, from breaches of police regulations to bigamy, adultery and statutory rape. S'ee note to Farrell v. State, 30 Am. Rep. 617. It is held, however, in some jurisdictions, that an honest belief, based upon reasonable grounds, is a defence to the charge of bigamy, although the second marriage /'was within the statutory period. 4 Ency. Law, 2 ed. 40. But the weight of authority in this country is the other way. The question has not been passed upon in this State, but the action of the Court has at least been foreshadowed in cases recently decided. State v. Hopkins, 56 Vt. 250 (260); State v. Wyman, 59 Vt. 527; State v. Dana, 59 Vt. 614; State v. Tomasi, 67 Vt. 312; State v. Ward, 75 Vt. 438. It was claimed in State v. Tomasi that ignorance of fact, unaccompanied by negligence, exempts from criminal responsibility. But it was said in that case, and said again in the Ward case, that when a statute makes an act penal, without reference to knowledge, ignorance of the fact is no defence. No ground occurs to us upon which it can be urged that those cases should be distinguished from this. It is clearly the intent of the statute that one who marries within the seven years shall do so at his peril. There is nothing in the- harshness of the provision that justifies a doubt of this intention. The consequences of an invalid marriage to society and to innocent parties are so serious that the law may well take measures calculated to insure the procurement of the most positive evidences of death before the contracting of another marriage in less than the time fixed. Judgment that there is no error, and that the respondent take nothing by Ms exceptions.