
    LANGTRY vs. THE STATE.
    [iNDICTMMNT FOR BIGAJir.]
    1. Proof of marriage.-^-In prosecutions for bigamy, the . first marriage may be proved by cohabitation and the confessions of the prisoner; and such evidence, if full and satisfactory, is sufficient to authorize a conviction, without ' the-production of the record, or the testimony of a witness who was pres- , . ent at the ceremony. > , • ' - ' "
    Fjiom the City Court of Mobile.
    Tried before the Hon. Alex. McXiNstry-.
    “The prison er-was indicted for bigaifiy, án'-d1 pleaded n'ót -guilty. .. The second' marriage was proved aiid admitted to have taken place in Mobile county, in May, 1857-.1 The defendant and the woman claiming to be his wife by the first marriage had lived1 together as'man and wife, and .claim ed each -other' as' such. > ¡ ‘ Several'' ’ Witnesses 1 testified to their living together, ancl to- their- recognition of each other as unan"1 and wife. No direet evidence 'of ihar-riage was offered by the State, nor ■ any "evidence except the admissions of the’ parties®' -except1’a' letter' purpoi’ting to be written-by the "prisoner, in which sorn’e person was -addressed as his wife; but the letter was without any-direction, and there was no testimony to prove that it was addressed to-the woman' claiming- tcí' be his wife by the first-imamagepjexcept that she' had possession' of'itY It ■wásún evidence, also,- ‘that defendant .’admitted that he was''married to the woman- claiming to he'his wife by the first marriage" hut- that he had ■ destroyed ‘the evidence, and sb!é-had¡no hokbon himh -He afterwards-said]' oh thfe same inO thing,1 that he 'was- never married tb lierJ There had'been sbme-testimony1 about the . ■ ■ '-■• — by "-defendant of something-pxirpQrtiug-to ¡be ai jnarriuge -.dértificaté.'
    “Hpon this evidence, the defendáút’s'-eóunkél -asked the' court- toipstructthe -''jmy/'-fthat tliey ® dp'ul'd'-hat 'find' the defendant guilty -of i bigamy/ witliohL'. direct evidence' of the first marriage, or what was equivalent to it; also, that they could not find him guilty upon the above evidence. The court refused to give these charges, and the defendant excepted.”
    A. P. Bagby, for the prisoner.
    M. A. Baldwin, Attorney-General, contra.
    
   STONE, J.

The record in this case presents the single question, whether, in a prosecution for bigamy, the first marriage may be proved by cohabitation, and the confessions of the party. In the ease of Ford v. Ford, 4 Ala. 142, this court said, “Upon an indictment for bigamy, and in the action for criminal conversation, the fact of the former marriage must be proved by the production of the record of the marriage, or by a witness present at the ceremony.”

In Morris v. Miller, 4 Burr. 2057, Lord Mansfield, in delivering the opinion of the court in a case of crim. con., said, “It shall not depend upon the mere reputation of a marriage, which arises from the conduct or declarations of the plaintiff himself.” He adds, “In prosecutions for bigamy, a marriage in fact must be proved.”

To the same effect are Fenton v. Reed, 4 Johns. 52-3; Commonwealth v. Littlejohn, 15 Mass. 163; People v. Humphrey, 7 Johns. 314; Bishop on Marriage and Divorce, § 324.

On the other hand, the following authorities are directly in point, to show that marriage, even in prosecutions for bigamy, may be proved by cohabitation and the confessions of the party; but that the testimony, to justify a conviction, must be clear, strong and convincing. — See able opinion by C. J. Gibson, in Forney v. Hallachee, 8 Serg. & R. 159; Com. v. Murtagh, 1 Ashm. 272; Ham’s case, 11 Maine, 391; Cayford’s case, 7 Greenl. 57; The State v. Hilton, 3 Rich. (Law) R. 434; Roscoe’s Cr. Ev. (3d Amer. ed.) 311, 312.

The language quoted from Ford v. Ford, supra, is dictum ; no point of the kind arising in the case. So much of tbe opinion of Lord Mansfiel,d ’in Morris v. Miller, supra; as> -relates >to' :crim.e of bigamy,- -’ is also dictum. So, alsoptlie; case of Fenton v. Reed, supra.

While iwe’admit the soundness oftberule wbicb requires full-ahdisatisfactory proof of-marriage, before a- conviction cap'be-had of so grave anfofibrise as 'bigamy, we are not prepared-’t't)'’re-’affirin.i 'tbe dictum' in- tbe case of Ford v. Ford, supra.'d On tbe contrary, we hold, that if tle^roof ' of mamáge;-be"full'.ánd satisfactory, it is not absolutely necessary that tbe prosecution-shall produce either the"record>of tbe marriageyor the> ’testimony of some person-' who-witnessed the ceremony. — See' Morgan v. The State, 11 Ala. 289.

Tbe i charge; askqd in; this ¡ case,'; and-refused;' was1 -in; co.n- < ■ "’ fliot.with:these .viéte;- and-the! city ’court" did not erran - refusing to give it. mv >'•' ? b -11---

Judgment'of f be'city court-affirmed;  