
    The People of the State of New York, Respondent, v. George H. Dauchy, Appellant.
    Fourth Department,
    December 6, 1911.
    Crime — bigamy—remarriage after absence of wife for five. years — belief of death.
    As under section .341 of the Penal Law a person is not guilty of bigamy by remarrying if his former wife has been absent for five years successively without being known to him within that time to be living, and if believed by him to be dead, a person whose former wife has been continuously absent for five years cannot be held as matter of law to have known that his wife was living within that time merely because in the evidence produced to show that he believed her to be dead it appears that a person told him she died within three years of his second marriage. The question whether he believed she was dead is one of fact for the jury.
    McLEsrsrAjX', P. J., dissented.
    Appeal by the defendant, George H. Dauchy, from a judgment of the County Court of Monroe county, rendered against the defendant on the 18th day of June, 1909, convicting him of the crime of bigamy, and also from an order denying the defendant’s motion for a new trial.
    
      
      Hugh J. Maguire, for the appellant.
    
      John W. Barrett, District Attorney, for the respondent.
   Kruse, J.:

The defendant was convicted of the crime of bigamy. He was properly convicted unless his case falls within the first exception contained in section 341 of the Penal Law (formerly section 299 of the Penal Code), since it appears that at the time of the second marriage he had a wife living, and that constitutes the crime of bigamy according to the general definition contained in section 340 of the Penal Law (formerly section 298 of the Penal Code). But that section does not extend: 1. To a person whose former husband or wife has been absent for five years successively then last past, without being known to him or her within that time to be living, and believed by him or her to be dead.” (Penal Law, § 341, subd. 1; Penal Code, § 299, subd. 1.)

The defendant was first married November 18, 1884. He was married the second time August 5, 1902, upon which marriage the conviction is founded. The undisputed evidence shows that at the time of the second marriage the wife of his first marriage had been absent for five years successively. For the purpose of showing that the defendant believed her to be dead at the time of the second marriage, he testified that certain persons informed him that they had heard reports to that effect. But it further appeared that he had been told by at least one of the persons that she died in June or July, 1899, about three years before the second marriage; and according to that information his wife was alive up till about June or July, 1899. And so it is argued that he must have known at the time of his second marriage that she was alive within the five-year period. That may do as a matter of argument, but the difficulty is that the trial judge held as a matter of law and so charged the jury, that the defendant could not take advantage of the exception with reference to absence because he knew that his wife was living within that time.

I think it cannot be held as a matter of law that the defendant knew that his wife was alive within the five-year period,

The persons who gave the information to the defendant of the death of his wife and the .time when she died simply reported what they had heard. These reports did not conclusively prove that the defendant knew that his wife was alive before the time of her reported death any more than they established the fact that he knew that she died in June or July, 1899, although sufficient to show that he may have believed that she was alive within the five-year period. But that does not put his case beyond the five-year exception. For if his wife was absent for five years immediately preceding his second marriage without his' knowing that she was alive within that period of time, and he .believed at the time of the second marriage that she was dead, he is within the exception. Hearing that she was dead accentuated the presumption of her death arising from her five years’ absence, and fortifies his claim that he believed her to be dead at the time of his second marriage. While I think the information which he had in connection with the other circumstances was sufficient to make that a question of fact for the jury, as well as whether he believed at the time of his second marriage that the wife of his first marriage was dead, I think it should not be held as a matter of law that he had such knowledge as to place him. outside of the five-year absence exception.

I think the judgment and order must be reversed and a new trial ordered.

All concurred, except McLennan, P. J., who dissented.

Judgment and order reversed and new trial granted.  