p. 576Beatrice V. Butters in New York, who was living at the time of the New Jersey marriage, to prove which marriage to Butters defendant offered in evidence the following certificate:
“This is to certify that on the first day of September, in the year of our Lord one thousand eight hundred and seventy-nine, at Grace Church, lltith street, New York city, I joined together in holy matrimony Harry Mortimer Crawford and Beatrice Vulcan Butters, according to the rites of the Protestant Episcopal Church, in the United States of America, and in.conformity witli the laws of the state of New York. In witness whereof, I have hereunto affixed my name, this 1st day of Sept., Anno Domini one thousand eight hundred and seventy-nine.
“D. Brainard Ray, Rector of Grace Church, Harlem."
From a judgment of conviction defendant appeals.
Argued before Learned, P. J., and Landon and Mayham. JJ.G. D. B. Hasbrouck, for appellant. John N. Vanderlyn, Dist. Atty., for the People.
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 Hew Jersey to Laura Ann Lane was void under the laws of Hew Jersey, where it occurred, by reason of his previous marriage to one Beatrice Vulcan Butters, who at the time of his alleged marriage to Lane was living and his lawful wife, and that bigamy could not be predicated upon his marriage with Leona Dn 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 Hew Jersey, its validity must be determined by the laws of that state, (Van Voorhis v. Brintnall, 86 N. Y. 18 ; Moore v. Hegeman, 92 N. Y. 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 stale; but it is not in terms, like the Michigan statute, which has been considered by the courts of the state in 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 to 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 th - one in which the bigamy was alleged was not in legal effect the second marriage, as 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
p. 577as 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 he undertook to do by proving by his own oath the marriage with Miss Butters before his marriage with Lane. But the rule is too well settled that the jury are not 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 defendant and Beatrice Vulcan Butters, purporting to have been signed by Brainard Ray, and testified that it was his marriage certificate, and that Brainard 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 a part of the res gestee. 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 ás 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 j udgment, it was entitled to. On the occasion of his marriage to Leona Du Bois he stated to the clergyman that that was his first marriage. They bad also 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 that fact; and that their failure to do so will justify the interference of this court in this conviction that
p. 578ground. 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 judgment should be reversed. Judgment affirmed. All concur.