
    James A. Gibson v. The State of Mississippi.
    1. Bigamy: presumption op death op husband or wipe prom pive years’ absence. — The law presumes, in favor of the validity of a marriage contracted hy a person whose husband or wife by a former marriage has been absent, and not heard from, and not known hy such party to be living for five years preceding such second marriage, that the absent and unheard of husband or wife is dead.
    2. Same : same : this presumption will be indulged against prisoner in prosecution for bigamy. — The legal presumption of the death of a husband or wife who has been absent without being heard from for five years, and the consequent validity of a second marriage contracted hy the abandoned party, after the expiration of that period, will be acted on in a prosecution for bigamy against one of the parties to such second marriage who subsequently and durihg the life of the other has contracted another marriage.
    Error to the Circuit Court of Warren county. Hon. J. S. Yerger, judge.
    The plaintiff in error was indicted and convicted of bigamy.
    The evidence is fully stated in the opinion of the court.
    At the instance of the prosecution, the court charged the jury as follows:
    1. “ If the jury believe from the evidence that the defendant was lawfully married to Maria Williams, on the 1st day of May, 1855, and afterward, on the 7th day of July, 1857 (and during the life of the said Maria), and when he was not divorced from her, he was again married to Ann Cochran, they ought to find him guilty, as charged; unless they are satisfied from the evidence that Elijah H. Williams, the first husband of said Maria, was living at the time of the marriage between her and the said defendant.”
    2. “ If the jury believe from the evidence, that Elijah Williams left his home in this State on or about the 1st October, 1849, and more than seven years since, and has not since that time been seen or heard from, they are authorized to presume, and should presume that said Williams is dead, and that he died previous to the marriage of said Maria with the defendant, unless the proof satisfies them to the contrary; and, if the jury believe that the said Elijah Williams died before the marriage of Maria Williams with- defendant, they ought to find the defendant guilty, as charged in the indictment.”
    3. “ That the presumption of law in favor of innocence is stronger in many cases than presumptions of the continuance of life, and that the jury, if the proof satisfies them that the husband of Maria Williams had absented himself for five years, without it being known to her that he was living, in favor of the validity of the marriage between Maria Williams and the defendant, if it took place after the expiration of five years, are authorized to presume, and should presume, that Elijah Williams (her former husband) was dead before such marriage was celebrated, unless the proof in the cause satisfies them to the contrary.”
    4. “ That the offence of bigamy upon the part of a man consists in marrying another woman, having a wife living at the time of his second marriage ; and if the jury believe from the evidence in the cause that the defendant was legally married to Maria Williams on the 1st of May, 1855, and that afterwards and during the lifetime of said Maria (he knowing her to be living), defendant was married to Ann Cochran, as charged in the indictment, then they ought to find the. defendant guilty of bigamy as charged.”
    The fifth instruction for the State is set out in the opinion of the court.
    The prisoner asked the following charges:
    1. “ If the jury believe from the evidence, that Maria Gibson, previous to her marriage with the defendant, was married to one Elijah Williams, in the year 1849 ; that in order to convict the defendant, it is necessary for the State to prove beyond a reasonable doubt, that the said Williams was dead at the time of defendant’s marriage with said Maria, and the burden of proof is on the State.”
    The court modified this instruction by inserting after the words “reasonable doubt,” the words “arising out of the evidence,” and by inserting after the words “said Williams was dead,” the following, “ or had been absent for five years next preceding the marriage of defendant with said Maria, unheard from by said Maria at the time of the defendant’s marriage with the said Maria.”
    2. “ That in criminal cases, the law does not presume the death of a person merely from lapse of time, unless such time would go beyond the ordinary limits of human life; but such death, when the accused is to be affected by it, must be proven to the satisfaction of the jury beyond a reasonable doubt.”
    The court refused to give this instruction.
    8. This instruction gave the defendant the benefit of reasonable doubts, in the ordinary form.
    4. “ That proof of a fact by common rumor, which is hearsay evidence of hearsay evidence, is never admitted except upon the last necessity, — is the least satisfactory of all evidence, and is never conclusive of the fact attempted to be proved.”
    This instruction was given as asked.
    5. “ That the law always presumes against the commission of crime; and in this case it presumes that the marriage, as being bigamous, was lawfully contracted; and this presumption must be rebutted by proof, beyond a reasonable doubt, before the jury can find the prisoner guilty.”
    This instruction was refused.
    To the action of the court, .in giving the instructions asked. for by the State, and to the refusal and modification of instructions asked for by the prisoner, he excepted.
    The verdict was guilty, and judgment accordingly; and the prisoner sued out this writ of error.
    
      Brooke and Smedes, for plaintiff in error.
    The principle contended for in thismase, on behalf of the plaintiff in error, is that, in criminal cases, the death of a person (if the fact of his being alive is material in defence of the accused), will not be presumed from mere lapse of time, unless the period elapsed goes beyond the ordinary limits of human life. The proposition to this is sustained by the case of Spears v. Burton, 2 George, 554, and the case of B,ex v. Twining, 2 B. & A., there cited.
    The rule would be reversed, when the fact of a person being alive would be essential to the defence of the accused. The person would be presumed to be alive, notwithstanding he may have been absent or unheard of for more than five years. The presumption of law, as to life or death, shifts in favor of innocence. If this proposition be true, the bare rumor of the death of Williams, unsupported by any fact except that of his absence, was certainly insufficient to rebut the presumption of law, made in favor of the accused, that he was alive. The instructions of the court being adverse to this view, were erroneous. For the same reason, the court erred in refusing the second instruction asked for by the defendant, and in modifying the first.
    The third instruction, asked for by the State and given, is manifestly erroneous. Instead of giving to the accused on trial the benefit of the legal presumption of innocence, it gives it to Maria Gibson, a party not on trial, and not even a witness in the case. No matter whether she was guilty of bigamy or not, her guilt or innocence was not in question, and a presumption could not be made in her favor against the accused. The instruction, in fact, took away from him the presumption of innocence with which the law clothed him, by making an issue between him and her, and giving her the benefit of such presumption. All of the State’s instructions having more or less this effect, are erroneous, and the court should have granted a new trial.
    
      T. J. Wharton, attorney-general, for the State.
    The proof establishes the .marriage of the plaintiff to one Maria A. Williams, on the 1st day of May, 1855, and also his marriage, on the 7th July, 1857, to one Ann Cochran, the said Maria being then alive. Also, the marriage of said Maria to one E. H. Williams, on the 20th February, 1849. It was also proved by the State, that in October, 1849, said Williams left the neighborhood, and had not since been seen there. In the winter of that year, a report came there that he had been drowned in Old River; that said report-was believed and acted on in the family of said Maria; that since this indictment was framed, a rumor was started that he was alive; proceeding from one Keene, who was not worthy of belief on oath. All of which facts were proved by members of the family of said Maria.
    No proof was adduced by plaintiff in error.
    The conviction in this case was clearly correct, and the judgment should be affirmed. It is an indictment under the law' as it stood prior to the adoption of the new Code, the offence having been committed at the date of the marriage to the second wife, Ann Cochran, which was on the 7th July, 1857. See Hutch. Code, 977, defining the offence, and prescribing the punishment of the bigamy. The second section declares that the statute shall not apply “to any person, by reason of any former marriage, whose husband or wife, by such marriage, shall have been absent for five successive years, without being known to such person within that time to be living,” &c.
    Upon the principle asserted in that exception to the operation of the statute, the said Maria did not incur the pains and penalties of the act by her marriage to the said plaintiff, on the 1st day of May, 1855, more than six years having then transpired from the date of her previous marriage to said E. H. Williams, and very nearly six years having elapsed, during which said Williams had absented himself. It further being proved, that he was reported and believed in her family to be dead.
    I say there is no pretence upon the proof in the record upon which to impeach her said marriage. The law fully authorized her to marry plaintiff. The absence and reported death of her former husband, for a period of more than five years, exempted her from the penalty against bigamy.' That marriage then was lawful. It follows, of course, that the subsequent marriage of plaintiff to said Ann Cochran (he not being divorced from said Maria, and she still alive), was illegal, and by it he subjected himself, under the statute, to this prosecution.
    
      Spears v. Burton, 31 Miss. 554, cited for plaintiff in error, sustained the ruling of the court below, admitting the testimony of witnesses, who stated that they had heard the plaintiff’s mother state, many years ago, that one Bayard, who was her husband before she married the plaintiff’s father, was dead prior to her marriage to plaintiff’s father, and that he had never been heard of since he left her, in the year 1829, and that the general reputation, among their family connections, was that he was dead. Common reputation and belief in the family, and among their relations, of the death of a party, are competent evidence of the fact. 1 Stark Ev. (5th Am. ed.) 158, 159; 2 lb. 605.
    I maintain that the whole reasoning of the court, in that case, is a clear recognition of the principles asserted in the instructions given in this case for the State, and that that case is a decisive authority for me in this case. Counsel for plaintiff insists that the presumption of law as to life shifts in favor of innocence, and that the person would be presumed to be alive, notwithstanding he had not been heard of for five years. But, as we have seen, the very statute under which this indictment was framed, excepts a wife marrying a second time, when her husband has been separated from her, by absence, for five years, and not heard from, and not being known to her to be alive. Here, not only was Williams, her former husband, not known to her to be.alive, but he was reported, and believed by her and her family to be dead, during the nearly six years which elapsed from the time he left until she married plaintiff.
    The “ shift of presumption” which the court is asked to indulge in favor of the innocence of plaintiff, who clearly defied the law, in his marriage to Ann Cochran, and who is shown to be guilty of the offence of which he is convicted, would inculpate the really innocent party, the said Maria. The court is asked to presume that Williams was alive, at the marriage of plaintiff and said Maria, in order to invalidate the said marriage, and so render legal the marriage to Ann Cochran, a party for whom no indulgence should be shown, as it is apparent that she knew all about plaintiff’s previous marriage to said Maria.
    It would be a monstrous perversion of the rules of law, considered in the abstract, and operate a covert injury to an innocent woman, to indulge any such presumption in this case. It would be a presumption to favor a guilty party, and subject an innocent one to a prosecution for bigamy. It was a marriage solemnized in due form of law. This court said, in Spears y. Burton, supra: “ It is true, that the presumption of law is, that Bayard was alive until the lapse of five years after his departure had given rise to the presumption, created by the statute, that he was dead. But there is, also, a presumption of law, that the marriage of plaintiff’s father and mother ,was valid, it having been solemnized in due form of law. It was ■valid, unless the former husband was living at that time. But unless he was shown to be then living, the presumption must be indulged, that he was dead ; because, otherwise, the second marriage would be held criminal, by reason of a presumption, which would be to establish a crime upon a bare presumption.” And again, “ It would, therefore, be unjust and unreasonable to give force to the presumption, that he was living at the time of the second marriage, when subsequent facts tend strongly to show that the presumption of his death, upon which the parties acted, was true, in point of fact.”
    So, in this case, the subsequent facts tend strongly, I might say conclusively, to show that the presumption of Williams’s death, upon which plaintiff and said Maria acted in their marriage, was true, in point of fact. As to the idle rumor of Williams being alive, all that was ever heard of it, was from a man named Keene, proved to be unworthy of belief on oath ; and it was started (no doubt collu-sively between plaintiff and Keene) after the indictment was found.
    The proposition contended for by plaintiff’s counsel, and which is attempted to he supported by the case of Spears v. Burton, supra, we think, is shown to be untenable by that case. For, in this case, we have both the presumption of Williams’s death, for over five years’ continuous absence, and the reports in his family, acted upon in good faith, that he was dead. Would not this be conclusive for his wife, if she had been indicted for bigamy, after her marriage to plaintiff?
    Greenleaf says, speaking of bigamy: “ The indictment states the first and second marriages, and alleges, that at thé time of the second, the former husband or wife was alive. The proof of these three facts make out the case on the part of the prosecution. As to the first marriage, it is sufficient to prove that a marriage in fact was celebrated according to the laws of the country in which it took .place; and this even though it were voidable, provided it was not absolutely void.” 3 Greenl. Ev. 189, § 201. He also says, the defence may be made by disproving either of those three points. He gives the case of a woman marrying a second husband abroad, in the lifetime of the first. Afterwards, the first died; she then married a third in the lifetime of the second; and for this marriage she was indicted. Upon proof, that the first husband was living when the second marriage was had, it was held a good defence; the second marriage being a nullity, and the third, therefore, valid. But the prior marriage must be shown to be absolutely void; for, if only voidable, and not avoided before the second marriage, it is no defence. Ib. 190, § 208. That is identically the principle which settles this case. It rested upon the plaintiff to disprove the case made for the State, by affirmative proof, that Williams was alive when he married the said Maria.
    It is fully proved, that said Maria was alive at the date of the marriage of said plaintiff to said Ann Cochran. On that point there is no contest.
    I submit, that the judgment of the Circuit Court is correct, and should be affirmed.
   Handy, J.,

delivered the opinion of the court.

This was an indictment for bigamy, upon which the plaintiff in error was convicted.

On the part of the State, it was in evidence, that the accused was married, in due form of law, to one Maria Williams, in Warren county in this State, on the 1st day of May, 1855 ; and that he was married, in due form of law, to one Ann Cochran, on the 7th day of July, 1857, the said Maria being alive at the date of the latter marriage.

It was then shown, on the part of the accused, that the said Maria had been lawfully married in Warren county, to one Elijah H. Williams, on the 20th February, 1849.

It was then proved by the State, by the testimony of two witnesses, one the uncle, and the other a member of the family, of said Maria Williams, that, in October, 1849, Elijah H. Williams left the neighborhood, and has not since been seen there; that in the winter of that year, a report came to the neighborhood, that he had been drowned in Old River; that said report was believed and acted upon in bis family, and that of said Maria; that since the indictment, the witnesses had heard a rumor that said Williams was alive, but it came from a low man, who, from the witnesses’ knowledge of his character for truth and veracity, was not worthy of belief on oath; that, with this exception, said Williams has not been seen or heard from since his departure.

Upon this evidence the accused was convicted.

The ground upon which the judgment is alleged to be erroneous is, the rule stated in several of the instructions given by the court to the jury, and, among others, in the fifth instruction at the instance of the State, which is as follow's : “ Although the jury may believe, from the evidence, that the defendant, James A. Gibson, was married to Maria A. Williams on the 1st May, 1855, and within five years next after the departure of her-first husband, Elijah Williams, from Warren county, nevertheless, the marriage of said defendant with said Maria Williams is to be considered legal and valid by the jury, unless the proof in the cause satisfies them that Elijah Williams, the first husband, was alive at the time of the marriage of said Gibson with said Maria. The presumption of law, as to the continuance of the life of said Elijah Williams, after his departure from Warren county, will not be sufficient to establish the fact, that said Elijah was alive at the time of the marriage of said defendant Gibson with said Maria, in opposition to the presumption of law, of his death, arising from such continued absence of said Williams unheard of for five years.

The position taken in the defence is, that the marriage of the accused to Maria Williams was unlawful, because her husband by her former marriage was not proved to be dead, and that the legal presumption of his death, arising from the fact of his continued absence for five years unheard of,' cannot be applied in a case of criminal prosecution, as evidence of his death, and thereby render the marriage of the accused with Maria Williams legal, in presumption of law, so as to subject him to the crime of bigamy on account;, of his subsequent marriage.

The question upon which this position depends is, whether the-marriage between the accused and Maria Williams was in law valid,, under the circumstances in which it was contracted. It appears by; the evidence, that her former husband had been absent for more; than five years at the time, and had not been heard of during that period; that he had been reported to be drowned, and that the report was believed and acted on in the family connection, and Williams has not since made his appearance, and is not shown to have been alive since his departure. That, under such circumstances, the marriage was celebrated in due legal form. In point of civil rights resulting from the marriage, it cannot be doubted that such a marriage would be valid, the former husband not having been proved to be alive after it took place. The right of dower in the wife would have existed, and the offspring of the marriage would have been legitimate and the legal heirs of the father’s estate. This results from the presumption of law -created by our statute in relation to bigamy, exempting any person from the penalty of the statute who shall contract another marriage after the husband or wife shall have been absent for five successive years, without being known to the person contracting the marriage to be living. Hutch. Code, 977, § 2.

Where the fact of the celebration of the marriage, and in due form of law, is fully proved in such cases, there appears to be no difference as to. its validity, between the civil and criminal consequences which may proceed from it. The question in both respects is, whether'the parties were competent to contract alegad marriage; and when the presumption of law exists that the former husband is dead, by reason of his absence for five successive years unheard of, the disability of the party is removed by the legal presumption, and she is competent to contract a new marriage, which is legal and valid to all intents and purposes until the presumption of death be removed by proof that the absent husband was alive at the time of its celebration. It only becomes illegal, either as to civil rights or criminal consequences, upon the production of such proof.

It is objected that the exemption from punishment, of a party marrying in case of absence of a husband, created by the statute, only relieves that party from the penalty, but does not operate to give validity, in presumption of law, to the new marriage, as to the husband of that marriage, and so as to bind him to its consequences as a legal marriage; and it is argued, that this would be to make her innocence the ground of a presumption that the marriage was legal on his part, and convict him by reason of his subsequent marriage upon a presumption of guilt. But this is an erroneous view of the question. The point of inquiry is, whether his marriage to Maria "Williams was legal. The presumption of law is that it is. The effect of the statute is to make it legal as to her, unless her husband were then alive, and the presumption is that he was dead. It must also be presumed to be valid as to him under the circumstances ; for it cannot be presumed to be valid as to one party, and held to be void as to the other. For that would be to render him guilty of adultery for cohabitation with a woman whose marriage with him wras, as to her, presumed to be legal and valid until the contrary was shown, which would be absurd.

The law presumes the marriage to be valid as to him. Spears v. Burton, 31 Miss. 547. And in opposition to that presumption, without evidence destroying it, he cannot be heard to allege that it was illegal, in order to avoid the punishment of his crime in abandoning the duties which he thereby assumed, and contracting marriage with another woman. Nor is he to be permitted to complain that the presumption of the legality of his former marriage is tobe used for the purpose of convicting him of the crime of his subsequent marriage. The presumption is one of innocence, which he cannot complain of because he subsequently committed a crime, in relation to which the presumption in the former case operates against him.

The instructions of the court are in accordance with these views, and the judgment is correct, and must be affirmed.

Smith, C. J., dissented from the above opinion.  