instance, and either under a form of marriage or without, between two persons too nearly related in consanguinity or affinity to intermarry.' 9994 Incest was not indictable at the common law. It is so only by the various statutes which have been enacted both in England and the United States, and which usually define the crime in express terms prescribing what are its essential ingredients and particularly the prohibited degrees of kinship.95 The sexual intercourse, whether habitual or not, must of necessity be a concurrent act. The evidence must show beyond a reasonable doubt that the woman voluntarily consented to it. If it appears that she was compelled either by force or fraud to submit without consent, the crime is not incest but rape, though the parties are related within the forbidden degrees." § 396. Evidence to show sexual intercourse.-Proof of a single act of sexual intercourse is enough." Intermarriage, though Bishop's St. Cr., § 727; State v. Brown, 47 Ohio St. 102, 23 N. E. 747, 21 Am. St. 790n. For other definitions see Daniels v. People, 6 Mich. 381; Commonwealth v. Lane, 113 Mass. 458, 463, 18 Am. 509n; De Groat v. People, 39 Mich. 124; Territory v. Corbett, 3 Mont. 50, 55; Shelly v. State, 95 Tenn. 152, 31 S. W. 492, 49 Am. St. 926; Porath v. State, 90 Wis. 527, 63 N. W. 1061, 48 Am. St. 954; Barrett v. State, 55 Tex. Cr. 182, 115 S. W. 1187; Gillespie v. State, 49 Tex. Cr. 530, 93 S. W. 556; Pate v. State (Tex. Cr.), 93 S. W. 556; People v. Koller, 142 Cal. 621, 76 Pac. 500; Adams v. State, 78 Ark. 16, 92 S. W. 1123. 344; State v. Hurd, 101 Iowa 391, 70 relevant, need not be proved.98 Any evidence which is relevant to prove adultery between a man and woman is admissible.99 The relation and conduct of the parties toward one another, their opportunities for meeting, their oral expressions of affection or liking, and their inclination to seek each other's society are always relevant. Prior acts of incest between the same parties may always be proved.100 So, too, it may be shown that they indulged in familiarities and caresses when alone or in the presence of others. But evidence of demonstrations of affection indulged in by the parties should always be considered by the jury in the light of the kinship of the parties.1 § 397. The kinship existing between the parties-Evidence of accomplices. The kinship between the parties to the incest may be proved by the evidence of relatives and friends; and, perhaps, by family reputation. The jury are to determine from the evidence what degree of consanguinity or affinity has been shown. But whether the kinship thus proved is or is not within the prohibited degrees is a question which is for the judge exclusively.2 The law regards both parties to the incestuous adultery as accomplices. Hence, the rule requiring the testimony of an accomplice to be corroborated is applicable to the testimony of either testifying against the other.3 forbidden degrees. State v. Bullinger, 54 Mo. 142; Simon v. State, 31 Tex. Cr. 186, 20 S. W. 399, 716, 37 Am. St. 802. State v. Streeter, 20 Nev. 403, 22 Pac. 758, 759; State v. Dana, 59 Vt. 614, 10 Atl. 727; State v. Jarvis, 18 Ore. 360, 23 Pac. 251, 253; Freeman v. State, II Tex. App. 92, 40 Am. 787; Coburn v. State, 36 Tex. Cr. 257, 36 S. W. 442; State v. Jarvis, 20 Ore. 437, 26 Pac. 302, 304, 23 Am. St. 141; State v. Miller, 65 Iowa 60, 21 N. W. 181, 182; Clifton v. State, 46 Tex. Cr. 18, 79 S. W. 824; Watkins v. State (Tex. Cr. App., 1910), 124 S. W. 959. It seems that a person may be convicted of incest though he gains his ends by such force as would render him guilty of rape. Here, as the woman is not an accomplice, her evi $398. Bigamy-The intent-Invalidity or annulment of first marriage.—Bigamy may be defined as the crime of going through the marriage ceremony with another, while a former husband or wife is living, and not divorced, knowing or having reason to believe, that the former spouse is still alive. The material facts are the first and second marriages and the fact that the first consort was alive and undivorced at the date of the void marriage. From such facts a bigamous intent may be inferred. That the first marriage was void,' or had been annulled or dissolved by a divorce, is always relevant as a defense. But the good faith of the accused, or his belief or opinion that the first marriage was void, or that he had been granted a divorce before his second marriage, is no defense." §399. Presumptions and proof of death of spouse.-The accused may prove that he has been credibly informed that his wife had procured a divorce from him, and may show that he had made due inquiry, and endeavored to ascertain the truth. If he believed, with good reason, that such was the case, he should be acquitted, as the criminal intent is not present.1 10 The state must prove af dence does not need corroboration. Smith v. State, 108 Ala. 1, 19 So. 306; 54 Am. St. 140; Whittaker v. Commonwealth, 95 Ky. 632, 27 S. W. 83, 16 Ky. L. 173; State v. Hurd, 101 Iowa 391, 70 N. W. 613. Contra, State v. Aker (Wash., 1909), 103 Pac. 420. 'Elliott Evidence, §§ 2864, 2865. Proof of jurisdiction, Elliott Evidence, § 2860. Second marriage in good faith, when defense, Elliott Evidence, 2872; when not, § 2871. Polygamy, proof under Edmunds' Law, Elliott Evidence, § 2870. Proof of corpus delicti in bigamy, see 68 L. R. A. 42. Elliott Evidence, §§ 2866, 2869. People v. Spoor, 235 Ill. 230, 85 N. E. 207, 126 Am. St. 197n; Robinson v. State, 6 Ga. App. 696, 65 S. E. 792. 3 Greenl. on Ev., § 203; Hal brook v. State, 34 Ark. 511, 517, 36 Am. 17n; People v. Chase, 27 Hun (N. Y.) 256, 270; McCombs v. State, 50 Tex. Cr. 490, 99 S. W. 1017, 123 Am. St. 855, 9 L. R. A. (N. S.) 10361. 8 Commonwealth v. Boyer, 7 Allen (Mass.) 306; Tucker v. People, 122 Ill. 583, 13 N. E. 809. The fact that the first marriage was voidable only is no defense and is never relevant. People v. Beevers, 99 Cal. 286, 33 Pac. 844; Barber v. People, 203 Ill. 543, 68 N. E. 93; Elliott Evidence, § 2861. Divorce as defenses, § 2873. Russell v. State, 66 Ark. 185, 49 S. W. 821, 74 Am. St. 78; Rice v. Commonwealth (Ky.), 105 S. W. 123, 31 Ky. L. 1354, Elliott Evidence, 8 2804. 9 firmatively, and beyond a reasonable doubt that the first husband or wife was alive at the date of the void marriage. This is not presumed, as matter of law, from proof that he or she was alive at a prior date, for the presumption that the accused is innocent will nullify the presumption of the continuance of life. Hence, in the absence of direct evidence, that the earlier spouse is alive when the later marriage was solemnized, the jury must acquit." § 400. Competency of wife of accused.-The first and true wife will never be permitted to testify against her husband when he is accused of bigamy.12 The second wife may testify to prove the second marriage, but only if the first marriage is already proved or admitted. As the existence or validity of the first marriage is usually the sole issue, and is not usually established until a verdict is reached, the rule often results in excluding both women as witnesses. As the fact of the first marriage alone renders the second wife competent, it must be proved by independent witnesses before she testifies. Even then she is competent only to prove the second marriage, or show facts rendering it void.13 The unchastity of the second wife is inadmissible to impeach her evidence.1* V. 11 Mitchell v. Commonwealth, 78 Ky. 204, 39 Am. 227; Commonwealth v. Parker, 9 Met. (Mass.) 263, 43 Am. Dec. 396; Commonwealth Bangs, 9 Mass. 387; Commonwealth v. Hayden, 163 Mass. 453, 40 N. E. 846, 47 Am. St. 468, 28 L. R. A. 318n; State v. Howard, 32 Vt. 380; Hiler v. People, 156 Ill. 511, 41 N. E. 181, 47 Am. St. 221n; Wilson v. State, 2 Ohio St. 319; Squire v. State, 46 Ind. 459, 467; Cameron v. State, 14 Ala. 546, 48 Am. Dec. 111n; Reg. v. Lumley, L. R. I C. C. 196. Some authorities hold that the jury may consider the fact that she was alive at a prior date and base an inference of fact upon it that she was alive at the date of the second marriage. Commonwealth v. Caponi, 155 Mass. 534, 30 N. E. 82; Commonwealth v. McGrath, 140 Mass. 296, 6 N. E. 515. See Elliott Evidence, § 2867. 12 See Hale P. C. 693; I East. 469; Miles v. United States, 103 U. S. 304, 309, 313-315, 26 L. ed. 481; State v. Patterson, 2 Ired. (N. Car.) 346, 38 Am. Dec. 699; Williams v. State, 44 Ala. 24; State v. McDavid, 15 La. Ann. 403. Contra, State v. Sloan, 55 Iowa 217, 7 N. W. 516. Under statute in Maryland making the husband or wife competent the wife is competent. Richardson v. State, 103 Md. 112, 63 Atl. 317. Evidence of husband or wife, see Elliott Evidence, § 2868; first and second wives as witnesses, § 2874. 133 Greenl. on Ev., § 206; Miles v. United States, 103 U. S. 304, 315, 26 L. ed. 481. 14 State v. Nadal, 69 Iowa 478, 482, 29 N. W. 451. § 401. Absence of lawful spouse. It is sometimes provided by statute that the absence of a husband or a wife without having been heard from during a period specified, ranging from two to seven years, may be proved as a defense by a party who marries again. It may be shown that the absentee was not heard from as alive during the statutory period. 15 But this presumption of death from unexplained silence and absence may be overcome by evidence that the absentee was alive a short time before the second marriage. As we have seen, the burden of proof is always on the state to show the first spouse is alive, and that the accused knows it. And the absence of a wife resulting from having been. driven away by the husband is not such absence as will excuse him though more than seven years. 16 17 The absence of circumstances from which death may be presumed does not justify an inference that the party is alive. There must be positive evidence that he or she is alive, and whether the presumption of death from unexplained absence has been rebutted is for the jury. The burden is on the accused to show that he did not know his wife was living during the seven years prior to his second marriage.18 Whether evidence of a reasonable belief on the part of the prisoner that the former husband or wife is dead is admissible in his defense, has been differently decided. Some cases maintain the affirmative of this proposition, 19 though later cases support a contrary view.20 $402. Proof of marriage by eye witness or certificate.-A higher degree of proof of a marriage is required in criminal trials than Poss v. State, 47 Tex. Cr. 486, 83 S. W. 1109; Robinson v. State, 6 Ga. App. 696, 65 S. E. 792. 15 Gibson v. State, 38 Miss. 313, 322. "State v. Goulden, 134 N. Car. 743, 47 S. E. 450. 18 67 Ala. 84, the court said: “Every act was done * * * which is declared criminal, and from the act and the circumstances, the criminal intent must be deduced. There was the intent to marry a second time, not State v. Goulden, 134 N. Car. 743, knowing the husband to be dead, who 47 S. E. 450. "Reg. v. Horton, 11 Cox C. C. 670; Reg. v. Turner, 9 Cox C. C. 145. "Medrano v. State, 32 Tex. Cr. 214, 22 S. W. 684; Reg. v. Gibbons, 12 Cox C. C. 237, 238; Reg. v. Bennett, 14 Cox C. C. 45. In Jones v. State, had been absent for a period of about one year only, and this is the criminal intent, and the only intent which is of the essence of the offense," and see State v. Zichfeld, 23 Nev. 304, 46 Pac. 802, 62 Am. St. 800, 34 L. R. A. 784. |