People v. Faber

Headnote

Bigamy — a second ma/i'riage, by one against whom a decree for divorce on the ground of adultery has been granted, does not constitute the offense of bigamy.

Appeal from a judgment of The Court of General Sessions for the city and county of New York, convicting the defendant of the crime of bigamy.

The appellant was indicted for and tried and convicted of the crime of bigamy, and sentenced to the State prison for the term of fiVe years. It was shown upon the trial that the defendant on the 21st of February, 1878, was married to one Helen Asheh Bra-den. Afterwards, and on the 12th of September 1881, in an action in the Supreme Court of this State, wherein the wife of the appellant was plaintiff and the appellant defendant, a judgment dissolving the marriage on the ground of adultery committed by the defendant was recovered and entered. Afterward and on the 16th of April, 1882, the appellant was-married to one Mary West.

The facts upon the trial were undisputed. The court held as matter of law that the appellant by his second marriage was guilty of the crime of bigamy.

The-court at General Term said: “ This exact question was presented to this court in The People v. Hovey ( 5 Barb., 117 ), and it was there held that after the dissolution of a marriage for adultery, the marriage contract was at an end and the relation of husband and wife no longer existed between the parties, and that it is not bigamy for the guilty party to marry again, but that the second marriage being prohibited by section 47 of the act concerning divorce (2 R. S. [2d ed.], 80), it is punishable as a misdemeanor under the forty-fifth section of title 6 of the Revised Statutes relating to misdemeanors. (2 R. S. [2d ed.], 582.)

“ The views of the court in that case are well sustained by the able opinion of Selden, J., and it has not been reversed in any subsequent case. In our opinion the case is a correct exposition of the law.”

.The judgment must be reversed, and a new trial granted.