
    *Joseph Stanglein alias Louis Naegley v. The State of Ohio.
    1. On the trial of a party indicted for bigamy, admissions made bysthe accused' prior to the alleged second marriage, in respect to the alleged former marriage, are competent evidence to go to the jury in support of the averment of the former marriage. Wolverton v. The State, 16 OMo, 173, followed, and approved.
    2. In an indictment for bigamy, an averment that the former husband or wife had not been “ continually and willfully absent for the space of five years-together, and unheard from, next before the time of" the last alleged marriage, is not necessary. Such fact, if it exist, is matter of defense to be-proved by the accused.
    3. A transcript of the record or-registry of a marriage in a foreign country, however well authenticated the same may otherwise be, is not competent prima facie evidence of the marriage therein declared and recorded, without proof of the laws of such foreign country requiring that such record or registry be made and kept.
    Error to the court of common pleas of Montgomery county.
    At the April term, 1866, of Montgomery common pleas, the-plaintiff in error was indicted for bigamy.
    The indictment alleges that Stanglein alias Naegley, on January 28, 1862, at Seibeldingen, in the Palatinate, in the kingdom of Bavaria, married one Louisa Naegel, and then and there had her for a wife, and afterward, and while he was so married to her, on November 7, 1865, in Montgomery county, Ohio, feloniously and unlawfully married and took to wife one Bena Scheaffer, his former wife being then alive, contrary to the statute, etc.
    To the indictment the defendant pleaded not guilty.
    At the December term, 1866, the cause came to trial to a jury.
    The prosecuting attorney for the state offered to prove the former marriage of the defendant and Louisa Naegel by producing a document written in the German language, and to give a translation of it in the English language by a sworn interpreter.
    The document purported to be a transcript from the records of marriages at Seibeldingen, in the Palatinate, in the kingdom of Bavaria, reciting that Joseph Stenglein and Louisa Naegel were united in marriage on January 7, 1862, before one Philip Jacob Wiederoll, burgomaster, officer of the civil ^service of the commune and mayoralty of Seibeldingen, canton and district of Landau, in the Palatinate, kingdom of Bavaria.
    The correctness of the record is attested by the seal and signature of “ the officer of the civil service;” and a verification of the signature to said certificate is certified by the president of the royal district court, under the seal of his court; and the genuineness of his signature certified by the signature of the president of the royal Bavarian Court of Appeals of the Palatinate, under the seal of his court; and the genuineness of that certificate confirmed ■by the signature of the royal private secretary of the royal Barvarian state department of justice, under the seal of that department ; and the authenticity of that signature and seal is certified by the secretary-general of the royal house of foreign affairs of Bavaria, under the seal of the department of foreign affairs of Bavaria; and the official character and authority of the secretary-general and the genuineness of his signature and seal, and that full faith and credit are due to all his official acts, are certified to by the United States consul at Munich, under the seal of the consulate.
    The prosecuting attorney offered no proof of the foreign law upon the subject of marriages, and their regulations in the foreign kingdom.
    Whereupon the defendant objected to the admission of the German document, for the reasons (1) that no proof of the foreign law on the subject of marriages had been given; and (2) that the court could not take judicial notice of any of the seals and signatures attached to the document to authenticate It; and (3) that the document was not duly autnenticated according to the laws of Ohio.
    The court overruled the objection and admitted the document; and the defendant excepted.
    To further maintain the issue on the part of the state, the prosecuting attorney offered, as further evidence to prove the first marriage, the admission of the defendant as to the first marriage, while living apart from the person alleged to be his first wife, and prior to the second marriage.
    The defendant objected to the admission of this evidence, *but the court overruled the objection, and allowed the evidence of the admission to go to the jury; and the defendant excepted.
    In submitting the case to the jury, the court charged them, among other things, that the document purporting to be a transcript of the records of marriages at Seibeldingen, in the kingdom of Bavaria, was prima facie evidence of the marriage therein recited, and raised the presumption of the validity of the marriage so recited, and that it was duly celebrated under and in accordance with the laws of that kingdom on the subject of marriages; and that, by reason of that presumption, the burden of proof was thrown upon the defendant to show that the marriage therein recited was not valid under those laws.
    To this charge of the court the defendant excepted.
    The jury returned a verdict of guilty in manner and form as charged in the indictment:
    Thereupon the defendant moved to set aside the verdict and grant a new trial, for the reasons :
    1. Misdirection by the court, in matter of law, upon the trial.
    2. Error in admitting the document purporting to be an extract from the record of the defendant’s previous marriage.
    3. The verdict is against the law.
    4. No proof of the foreign law having been given by the state, the verdict should have been for the defendant on that ground.
    5. The state having offered no proof “ that the defendant and his alleged first wife had not been continually and willfully absent for the space of five years together, and unheard from next before the time of said second marriage, and that the defendant during supb. timé was aware of her existence,” the case was not brought within the statute.
    6. The verdict is against the evidence.
    The court overruled this motion, and exception was taken.
    The defendant then moved in arrest of judgment, on the ground that the indictment is insufficient to support the verdict, in this : That the indictment does not contain the negative averment of the statute defining the offense with which *the defendant is charged; and on the ground of other defects appearing in the record and proceedings.
    This motion was overruled, and the defendant excepted.
    Thereupon the court sentenced the defendant to the penitentiary for two years; but on his application, suspended the execution of the sentence so as to give the defendant an opportunity to apply for the present writ of error.
    The defendant now claims that the common pleas erred:
    1. In admitting the document purporting to be a transcript of the record of the first marriage.
    2. In permitting the admissions of the defendant as to the first marriage te go to the jury.
    3. ' In the charge to the jury.
    4. In overruling the motion for a new trial and in arrest of judgment, and in passing sentence. .
    5. In other respeets apparent on the record.
    
      E. Thompson, for plaintiff in error:
    Under the general issue, every material averment contained in> the indictment is put in issue, and the prosecution is bound to make good every substantial affirmative allegation which is material to constitute the offense. 1 Whart. Am. Cr. L., see. 592 ; 1 Bishop’s Cr. Pr., sec. 497; State v. Woodly, N. C. 276.
    The first indispensable step to ’be taken by the prosecution is to establish the fact that the person prosecuted is a “ married person,” and “ had ” a husband or wife living at the time of the second marriage. To do this, a marriage in fact must be shown. The law will not presume a valid marriage as in civil cases. Shafher v. The State, 20 Ohio, 3; Arch. Cr. Pl. 476 ; Morris v. Miller, 4 Burrows, 2059; 1 Whart. Am. Cr. L. 860, and sec. 2625, n. (dd) ; Roscoe’s Cr. Ev. 309 ; People v. Humphrey, 7 Johns. 314.
    Where the first marriage was celebrated abroad, theprosecution must ehow, not only a marriage in fact, but a marriage valid by the foreign law. People v. Lambert, 5 Mich. 349; 1 Whart. Am. Cr. L., sec. 2631. And it is necessary to prove what the foreign law is. 2 Starkie, tit. Marriage, 705.
    Marriages between persons, sui juris, is to be determined by the law of the place where they were celebrated. If valid *there they are valid everywhere. Story’s Confl. Laws, sec. 113; 1 Greenleaf’s Ev., sec. 491; 1 Bishop, M. & D., sec. 355; 2 Starkie, 653, 705.
    A party relying on foreign laws, records, etc.,' must both aver and prove the same, as any other matter of fact. James v. R. R. Co., Am. Law Reg. (Oct. 1858), 718, 722; 11 Cl. & Finn. 115, 116; 50 E. C. L. 250; 10 Ala. 895-897; 1 Bishop, M. & D., secs. 418, 533, 427, 477; Story’s Confl. Laws, sec. 637; Thompson v. Ketchum, 8 Johns. 190; Holmes v. Broughton, 10 Wend. 75; Richmond v. Patterson, 3 Ohio, 368; Church v. Hubbart, 2 Cranch, 237; Ingraham v. Hart, 11 Ohio, 255-257; Brush v. Wilkins, 4 Johns. Ch. 506; Hosford v. Nichols, 1 Paige, 220; 2 Starkie Ev. 510; 1 Greenl. Ev., secs. 488-491; Ohio Code, see. 362; Clinton’s N. Y. Dig. 1154; De Segond’s Lessees v. Culver, 10 Ohio, 189.
    Before an instrument, made in a foreign country, and which derives a legal effect and operation from the law of that country, can be admitted in evidence, the existenee of the law itself, by virtue of which such record is kept, must be proved. 2 Starkie Ev., tit. For. Law, 460; Ray v. Crowninshield, 2 Mason, 151; Garner v. Lanesborough, Peake’s Cases, 17; 1 Bishop, M. & D., secs. 475, 477, 478; Story’s Confl. Laws, sec. 113; Richmond v. Patterson, 3 Ohio, 370; United States v. Percheman, 7 Pet. 53-85; Taylor’s Succ. 15 La. An. 313; People v. Lambert, 5 Mich. 349; Swift v. Fitzhugh, 9 Porter, 39; Leader v. Barry, 1 Esp. 353; Nokes v. Milward, 1 Cush. 391; 1 Bishop, M. & D., secs. 477, 478.
    Foreign laws, if written, must be proved by exemplification or by a sworn copy. Lincoln v. Battelle, 6 Wend. 475; Clinton’s N. Y. Dig. 1154, secs. 143,147, 148; Code, sec. 362. But the common law of a foreign country may be shown by the testimony of intelligent witnesses of that country. Kenney v. Clarkson, 1 Johns. 385, 394; 2 Starkie Ev., tit. For. Law, 459, 460; 2 Wend. 411.
    See also Story’s Confl. Laws, see. 113; 1 Greenl. Ev. 493-496; United States v. Percheman, 7 Pet. 53-85; Pelton v. Platner, 13 Ohio, 217.
    Another reason for the rejection of the German document, aa evidence of the matter in issue, was that it had not been duly authenticated *under the laws of this state. 1 Greenl. Ev., secs. 483, 484, 487-489, 498, 504, 505, 514; Parson’s Merc. Law, 93; Ripple v. Ripple, 1 Rawle, 386; Heberd v. Myers, 5 Ind. 94; Buckner v. Finley, 2 Pet. 586; Phœnix Bank v. Hussey, 12 Pick. 483; Halliday v. McDougall, 20 Wend. 81; 1 Bishop, M. & D., sec. 475; Canjolle v. Ferry, 26 Barb. 177; Silver Lake Bank v. Harding, 5 Ohio, 545; Snyder v. Wise, 10 Barr, 157; Warren v. Flagg, 2 Pick. 448; Robinson v. Prescott, 4 N. H. 450; Mahurin v. Bickford, 6 N. H. 567; Bissell v. Edwards, 5 Davy, 363; Starkweather v. Loomis, 2 Vt. 573; Blodget v. Jordan, 6 Vt. 580; 13 Ohio, 209; 15 Ohio, 33; Brightley’s Dig. 266; Coit v. Milliken, 1 Denio, 376; Clint. N. Y. Dig. 1154, sec. 153; 5 Bibb, 369 ; 3 Barr, 495; 7 Cranch, 408; 5 McLean, 43; Roscoe’s Cr. Ev. 222; Story’s Confl. Laws, sec. 530; 3 McLean, 93; 2 W. & M. 4; 6 McLean, 24; Hemp. 538 ; Kean v. Rice, 12 S. & R. 203, 208; Raynham v. Canton, 3 Pick. 293; Biddis v. James, 6 Binn. 321; Ex parte Povall, 3 Leigh, 816; Pepoon v. Jenkins, 2 Johns. Cas. 119; Ellmore v. Mills, 1 Hayward, 359; Baker v. Field, 2 Yeates, 532; Ohio v. Hinchman, 3 Casey, 485 ; Ohio Code, sec. 362.
    The certificate of the consul of the United States, under his seal, is not sufficient. 1 Kent’s Com. 42; 3 Taunt. 162; 1 Chitty, 50, 51; Church v. Hubbard, 2 Cranch, 187, 239, 240.
    The court could not take judicial notice of any of the seals attached to the certificates in authentication of the German document. Henry v. Adey, 3 East, 221; Delafield v. Hand, 3 Johns. 310; Peake’s Ev. 73; 7 Johns. 514; 8 Term, 303; Anon., 9 Wood, 66; United States v. Johnson, 4 Dallas, 416; 1 Greenl. Ev., sec. 501, note 1.
    As to the admissions of the defendant: An admission, not made in court, and before any such violation of the law as that with which he is charged in such court has been committed, can not beheld to be a confession of the crime with which he stands so charged. 1 Whart. Am. Cr. Law, sec. 683; People v. Hennessey, 15 Wend. 147; Bouv. L. Dic. tit. Confessions; People v. Humphrey, 7 Johns. 314; 4 Comst. 430; Gahagan v. The People, Parker’s Cr. Rep. 378; 1 Greenl. Ev., sec. 217.
    *The instructions of the court in regard to the effect of the-German document is against the whole tenor of the following authorities: Bishop, M. & D. sec. 444; Breaky v. Breaky, 2 U. C. Q. B. 349, 358; Williams v. East India Co. 3 East, 192, 200; King v. Hawkins, 10 Ib. 210, 217; Rex v. Butler, R. & R. C. C. 59, 60 ; Clayton v. Wardell, 5 Barb. 214; Rex v. Inh. Twyning, 2 B. & A. 486; Best on Presump. 59, 60, 177, sec. 128; 1 Greenl. Ev., sec. 170; Queen v. Curgewen, 35 Law Jour. 58, 59; Queen v. Briggs, 26 Ib. 7; Queen v. Heaton, 3 Fost. & Fin. 819; Russell on Crimes, 270; 14 Week. Rep. 55.
    As to scienter and negative averments: The question presented in the objection to the indictment is, as to whether the qualifications contained in the clause of the statute exempting the persons answering to such description from the penalties attached to such offense, be matter of defense, or matter for averment and proof. We maintain the latter. Van Valkenburg v. The State, 11 Ohio, 404-408; 1 Bishop Crim. Prac., sec. 382; 1 Chitty on Pl. 223; Gould on Pl. 167, sec. 22; Smith v. Moore, 6 Greenl. 274, 279; Hirn v. The State, 1 Ohio St. 24; Becker v. The State, 8 Ib. 391; Gatewood v. The State, 4 Ohio, 386; Rich v. The State, 8 Ib. 111; Anderson v. The State, 7 Ib. 609; Bailey v. Bailey, 8 Ib. 239; Hall v. The State, 20 Ib. 7; Cheadle v. The State, 4 Ohio St. 479 ; Miller v. The State, 3 Ib. 488; Kern v. The State, 7 Ib. 411; Gates v. The State, 3 Ib. 293; Dillingham v. The State, 5 Ib. 280; Queen v. Curgewen, 35 Law Jour. 58, 59; Am. Law Review (1866), 105, tit. Bigamy.
    
      W JEL. West, attorney-general, for the state:
    The only serious question in the case is that raised on the admission of the foreign record of marriage, without proof of the foreign law.
    1. The fact of the former marriage at the time and place mentioned in the foreign record, was admitted by the defendant, without any inducement or motive therefor other than truth.
    2. The admissions as to the former marriage may be given *in evidence to prove the fact of such former marriage. Whart. Am. Crim. Law, sec. 2633; 3 Greenl. Ev., sec. 204.
    Where the marriage was in a foreign country; such evidence has been frequently held conclusive. Whart. Am. Crim. Law, sec. 2634.
    Such admissions raise the presumption from which the jury may infer, without proof of the foreign law, that the marriage was in accordance therewith. Roscoe’s Crim. Ev. 312, 313.
    Upon this whole subject see 1 Bishop on Marriage and Divorce, sec. 409, et. seq.
    
      From the above authorities, and the cases cited in support of them, it is apparent that the “ deliberate admissions ” of the prisoner, given in evidence on the trial, are abundant to sustain the verdict, in the absence of any record evidence or proof of the foreign law.
    3. Did the admission of the foreign record, and the charge of the court thereon, vitiate the verdict?
    The record was properly authenticated. 1 Greenl. Ev., sec. 479. The several certificates appended thereto show the document to be an official record, else it would not be officially recognized, and that the matters recorded are the acts and doings of a public officer, in the line of official duty; and hence they and the record thereof .are required by law, and the paper admissible. 1 Greenl. Ev., sec. 493.
    4. The negative matter of the statute forms no part of the description of the crime. Hence, it need not be averred or proved. 1 S. & C. 404, sec. 7. But if it were otherwise, the indictment shows the fopmer marriage to have taken place in January, 1862, the second marriage in 1865, and the prosecution commenced before the expiration of five years from the date of the first marriage; which facts, so pleaded and shown, sufficiently negative the matter excepted to.
   Brinkerhoff, J.

The record in this case presents three questions :

1. Did the court below err in permitting the prosecution to give in evidence to the jury admissions made by the defendant as to the fact of the former marriage ?

*The cases bearing on this question are conflicting; but, on the authority of the case of Wolverton v. The State, 16 Ohio, 173, and the reasoning of the court in support of the ruling in that case, we hold that the court below did not err on this point.

2. Did the court err in overruling the motion in arrest of jadgmont on the ground that the indictment is defective in this — that it does not contain an averment that the former wife “ had not been continually and willfully absent for the space of five years ■together, and unheard from, next before the time of” the second marriage charged in the indictment ?

The indictment is framed under the seventh section of the act providing for the punishment of crimes, 1 Curwen’s Stat. 185; which section is as follows:

“ That if any married person, having a husband or wife living, -shall marry any other person, every person so offending shall bo deemed guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the penitentiary and kept at hard labor not more than seven years nor less than one year; but nothing contained in this section shall be construed to extend to any person whose husband or wife shall be continually and willfully absent for the space of five years together, and unheard from, next before the time of such marriage.”

Whether the rule on this point laid down by this court in Hirn v. The State, 1 Ohio St. 15, was properly applied in that case, -may be questionable, and as to that, the court was not unanimous ; but that the rule as there laid down is the correct one, and well •sustained by authority, we have no doubt. It was there held, that a negative averment to the matter of an exception or proviso in a statute is not requisite in an indictment, unless the matter of such exception or proviso enter into and become a part of the description of the effense, or a qualification of the languago defining or creating it.” And in 1 Wharton’s Am. Cr. L., sec. 378, it is said : “ If provisos and exceptions are contained in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos *it contains.” “ For all these are matters of defense, which the prosecutor need not anticipate, but which are more properly to come from the prisoner.”

Applying these rules to the indictment in question, we are of opinion that it is sufficient. The proviso here is in a distinct clause of the section, and forms no part of, and does not enter into, the description of the offense created and defined by it. We are satisfied, moreover, that this holding is in conformity with the general practice heretofore in this state; and it is stated in Warren’s Ohio Cr. Law, 345, that the indictment in the case of Wolverton above referred to, and the conviction and sentence under which was affirmed by the court in bank, contained no negative averment, the want of which is here alleged for error.

3. The only remaining question in the case is one which arises •on the admissibility in evidence of what purports to be a copy of a record or registry of the marriage of a person of the defendant’s name to a woman of the name of his former wife, as charged in the indictment, at Seibeldingen, in the Palatinate, or Rhenish Bavaria, as evidence of his former marriage, and the charge of the court below, to the effect that said transcript of record was prima facie evidence of the fact and of the legality , of the marriage therein recited and declared; and this, in the absence of any proof, dehors the transcript and its authentications, that the same was made by the authority of, or in conformity with, the laws of Bavaria.

If it had been proved, or if we were authorized to presume, that this record was made under the authority of, and in conformity to, the laws of the country where made, we have no doubt that it is well and abundantly authenticated. First wo have the certificate of the correctness of the transcript under the hand and official seal of “the officer of the civil service ” of the commune and mayorality of Seibeldingen, in the canton and district of Landau, in the Palatinate, kingdom of Bavaria; then comes the certificate and seal of the president of the royal district court verifying the signature of the “officer of the civil service;” and so on we have the certificates and seals of the president of the royal Bavarian *Court of Appeals, of the royal private secretary of the royal state department of justice, and of the secretary-general of the royal house of foreign affairs of the kingdom; each in succession verifying the signature of the one immediately preceding. Now, Bavaria is an independent and sovereign kingdom, long recognized by the civilized world as such, and it seems to be settled law that the certificate and seal of the department of foreign affairs of such a government ¡Droves itself, and is a sufficient authentication of any public record of such country, made and kept in obedience and conformity to its laws. 1 Greenl. Ev., secs. 4, 479 ; The Estrella, 4 Wheat. 298.

The difficulty is not in the want of due authentication of the record, but in the absence of proof that the Seibeldingen record was made in conformity with the laws of Bavaria; or, in other words in the want of proof that those laws require and authorize such records of marriages to be made and kept. No such proof was given, and we are unable to see how we can presume the existence of such laws. And the books are uniform to the effect that it is essential to the official character of any record, and to its competency as evidence, that it has been made and kept by a person whose duty it was to make and keep it. 1 Greenleaf’s Ev., sec. 485. And before an instrument, made in a foreign country, which derives a legal effect and operation from the laws of that country, can be admitted in evidence, the existence the law itself must be proved. 2 Starkie on Ev. 460; 1 Bishop on Marriage and Divorce, sec. 478. We are forced to the conclusion, therefore, that there was error in the admission of the Seibeldingen record in evidence, and in the charge of the court to the jury as to its legal effect.

Judgment reversed, and cause remanded for new trial.

Day, C. J., and White, Welch, and Scott, JJ., concurred.  