p. 602. Same—New Jersey statute.
If a marriage, prior to the first one shown by the prosecution, is proved, • the second, contracted in New Jersey, would, in seems, be void, without a decree of divorce from the first wife and will constitute a defense.
Where the defendant is indicted for bigamy for having married in New York after a previous marriage in New Jersey, and sets up as a defense that,
' at the time of the New Jersey marriage, he was already married to another woman and so the New Jersey marriage was void under the statute of that state, and the certificate offered to show the .'first marriage does not comply with the New York law and its proof depends solely on the defendant’s testimony, such certificate is properly excluded as a statutory certificate, and is not admissible as part of the res gastae, and the jury is not bound to believe the uncorroborated testimony of the defendant.
{Appeal from conviction and judgment bad and entered in the 'Court of sessions 'of Ulster county for the crime of bigamy. The indictment charged that on the 30th day of June, 1887, at the city of Newark in the state of New Jersey, the defendant was •married to Laura Ann Lane, and that while the said Laura Ann Lane was still living, and while he was married to her, that the defendant on the 31st day of August, 1890, at Esopus in Ulster county, N. Y., married one Leona Du Bois. The defendant pleaded not guilty to the indictment, and the case was transferred from the oyer and terminer to the Ulster county sessions, where a conviction was had, from which the defendant appeals.
G. D. B. Hasbrouck, for appellant; ■
John N. Vanderlyn, for respondents.
The defendant before pleading to the merits of the indictment, demurred to the same, alleging several grounds of demurrer, which demurrer was overruled. But no point is made on this appeal on the demurrer, and it therefore requires no discussion here; and so far as appears the demurrer was properly disposed of by the trial judge. The first ground urged by appellant for the reversal of this conviction is that-the defendant’s alleged marriage in New Jersey to Laura Ann Lane was void under the laws of New Jersey, where it occurred,
p. 61■by reason of Ms previous marriage to one Beatrice Vulcan Butters, w'ho at the time oí his alleged marriage to Lane was living and his lawful wife, and that bigamy could not be predicated; upon his marriage with Leona Du Bois after the alleged marriage with Lane for the reason that that marriage was absolutely void, and constituted therefore no previous marriage, and that consequently the defendant did not marry Leona Du Bois while he was married to the said Laura Ann Lane as charged in the indictment. • ■ • :
In support of this contention the appellant’s counsel cites the Hew Jersey statute, which provides: “That all marriages, where either of the parties shall have a husband or wife living at the time of such marriage, shall be invalid from the beginning and absolutely void, and the issue thereof shall be deemed to be illegitimate and subject to the legal disabilities of such issue.”' . As this alleged marriage to Laura Ann Lane occurred in Hewi Jersey, its validity must be determined by the laws of that state, Van Voorhis v. Brintnall, 86 N. Y. 18 ; Moore v. Hegeman, 92 id. 524, provided that statute is properly before the court. The case shows that it was introduced in evidence and this court must, therefore, take judicial notice of its provisions. It is true that the Hew Jersey statute quoted relates to divorces, and is not in terms applicable to criminal actions for bigamy; but it nevertheless prescribes the effect of a previous marriage and renders the subsequent marriage void, when celebrated in that state; but it is not in terms like the Michigan statute which has been considered by the courts of the state in the People v. Chase, 27 Hun, 257 . That statute provides that such second marriage “shall be absolutely void without any decree of divorce or other legal process.”
In People v. Chase, supra, the conviction was reversed on the ground that the bigamy alleged in the indictment, and upon which a conviction was had, was shown on the trial toi have referred to a second and third marriage; the second marriage being void by statute in the state where it was celebrated was held to be no marriage, and therefore the one in wMch the bigamy
p. 62was alleged was net in legal effect the second marriage, a# ■charged in the indictment. This was upon the theory that the second and third marriages were the only marriages alleged and as the second was void it was as no marriage and did not, therefore, make the other bigamous. I think within the decisions quoted we may hold that the word “void” in the New Jersey statute is, in effect, equivalent to the words used in the Michigan statute, which have been construed by this court in the first department to render the second marriage absolutely void and as if no such ceremony had taken place. It would seem to follow, therefore, that if the defendant was, in fact, married in the state of New York to Beatrice Vulcan Butters, September 1, 1879, and then on the 30th of June, 1887, in the state of New Jersey to Laura Ann Lane, while the first wife was still living, and not divorced, bigamy cannot be predicated on the marriage to Leona Du Bois on the 31st of August, 1890, solely upon the allegations of the marriage with Laura Ann Lane and Leona Du Bois, for the ceremony of marriage with Lane did not constitute a legal marriage in New Jersey and was void under the laws of that state. But whether or not the defendant was ever married to Beatrice Vulcan Butters was a question of fact for the jury, and was submitted by the trial judge to them, and the result of their verdict is that he failed to prove his marriage with Butters. The People in this case having proved the two marriages of the defendant under circumstances such as unexplained constituted a criminal offense, it was incumbent on the defendant to establish a valid legal excuse or defense. This be undertook to do by proving by Ms-own oath the marriage with Miss Butters, before his marriage with Lane. But the rule is too well settled that the jury are-mot bound to believe the uncorroborated evidence of the defendant charged with- crime to require citation of authorities. But the defendant -sought to corroborate his statement by the introduction of some other evidence.
The defendant offered in evidence a paper which upon its face purported to be an informal certificate of marriage of the de
p. 63fendant and Beatrice Vulcan Butters, purporting to have been signed by Raymond Ray, and testified that it was his marriage certificate and that Raymond Ray was pastor of an Episcopal church in Harlem. This paper was excluded by the court on the ground that it did not conform to the statutory requirement and was not therefore a valid marriage certificate. An exception was taken to this ruling and the appellant’s counsel now urges that the rejection of the paper was error for which the conviction should be reversed. We see no error in its rejection. It was not proved to have been signed by the alleged minister. The only evidence of its authenticity was the testimony of the defendant that Ray handed it to him. But if its execution had been proved it was not even a substantial compliance with the requirements of the statute. The statute makes the original certificate evidence when made as directed in the statute, and it is only by force of this statute that the common law method of proving it can be obviated. It was therefore properly rejected as a statutory certificate of marriage. Nor do we see how it can be received as part of the res gestae. It constituted no part of the marriage ceremony, and it does not affirmatively appear that it was made and delivered at the time of the alleged marriage.
It is urged as another corroborating circumstance tending to prove his marriage with Miss Butters that he introduced her as his wife and lived with her as such. This evidence, while it was competent upon that subject and proper for the consideration of the jury, was in no way conclusive upon them. They had a right to consider it and give it such weight as in their judgment it was entitled to. On the occasion of his marriage to Leona Du Bo-is he stated to the clergyman that that was his first marriage. They also had a right to take into account in considering the evidence the character of the witness who testified upon that subject and the relation he bore to the defendant in this case. We cannot, under the circumstances of this case, hold as matter of law that the defendant proved his- marriage with the woman Butters, that the jury were compelled to find
p. 64that fact, and 'that their failure to do so will justify the interference of this court in reversing this conviction upon that ground. We have examined the various objections and exceptions taken to the charge of the trial judge, and see no error or misdirection in the same for which the same should be reversed.
Judgment affirmed.
. LEARNED, P. J., and LANDON, J., concur.