In Miles v. United States,1 it was held by the Supreme Court of the United States that, "On an indictment for bigamy the first marriage may be proved by the admissions of the prisoner, and it is for the jury to determine whether what he said was an admission that he was actually and legally married according to the laws of the country where the marriage was solemnized." And, in addition to the cases cited above in Jackson's Case, this last opinion cites Regina v. Simmonsto,2 Duchess of Kingston's Case,3 Truman's Case, State v. Libby,5 Norwood's Case,6 Regina v. Newton,7 State v. McDonald,8 State v. Seales,9 Quin v. State, 10 Brown v. State, Williams v. State. 12 In Langtry v. State, 13 it was held that 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 records or the testimony of a witness who was present at the ceremony.

11

It appears to be well settled from these authorities that general reputation, cohabitation, and admissions or confessions of the party are all admissible evidence of the fact of the first marriage. General reputation alone is insufficient, but, taken in connection with cohabitation and admission, is competent evidence to establish a prima facie case, sufficient to sustain a verdict and judgment of conviction for bigamy. Whenever such evidence establishes in the minds of the jury beyond a reasonable doubt, the existence of the fact of valid first marriage, then it is sufficient in that regard to sustain a verdict and judgment for bigamy. But, as stated in the outset of this opinion, a valid marriage must be proven, and if such evidence is relied upon it must establish the existence of a valid marriage to the satisfaction of the jury beyond a reasonable doubt.

In the case before us the learned judge charged the jury that " any mutual agreement between the parties to be husband and wife, especially when it is followed up by cohabitation and living together as such, if proven to the satisfaction of the jury beyond a reasonable doubt, would constitute a valid and binding marriage, whether there was issued any license or not, or whether there was a celebration of the rites of matrimony by a public marriage ceremony or not. The true criterion is, did the parties agree to be man and wife, and was that agreement carried out by their acts and conduct toward each other, by

cohabitation, living together and recognizing each other as man and wife, and their conduct in society as such." This instruction was error. A valid, legal marriage is one which has been solemnized according to the mode and manner, and in accordance with the prerequisites, which the law of the place where solemnized has required.

As we have had occasion heretofore to see, the laws of this State prescribe that a license shall be granted, and the rites be performed by some one of the officials named in the statute as being authorized to perform them. These are the legal requisites to a valid marriage in this State, and any other form, not in conformity with these requirements of the law, would be illegal and void in prosecutions for unlawful marriage. On the trial of the case the defendant introduced the alleged first wife as a witness in his behalf, who declined to be sworn and to testify; but at the instance of defendant the court compelled her to testify. At common law the reputed first wife was not competent to prove the illegality of the first marriage.1 Our statute provides that "neither the husband or wife shall in any case testify as to the communications made by one to the other while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense, and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial." 2

And again: "The husband and wife may in all criminal cases be witnesses for each other, but they shall in no case testify against each other, except in a criminal prosecution for an offense committed by one against the other. 3

4

Under this latter article, we are of opinion that the wife is a competent witness in behalf of her husband on the trial of any criminal prosecution against him, bigamy or unlawful marriage not excepted. If competent to testify, then she can be forced to testify, as any other witness may be. In some States the rule is that a lawful wife is a competent witness against defendant to prove the marriage between her and defendant. 5

We deem it unnecessary to notice the other points discussed in appellant's brief. For error in the charge of the court, above indicated, the judgment is reversed and the cause remanded in order that a new trial may be had in conformity with the law as herein enunciated.

BIGAMY-PROOF OF FIRST MARRIAGE.

MILES v. UNITED STATES.

[13 Otto, 304.]

In the Supreme Court of the United States, October Term, 1880.

On an Indictment for bigamy the first marriage may be proved by the admissions of the prisoner himself, but not by the evidence of the alleged second wife.

Error from the Supreme Court of the Territory of Utah.
Mr. Justice Woods, delivered the opinion of the court.

Section 5352 of the Revised Statutes of the United States declares : 'Every person having a husband or wife living, who marries another, whether married or single, in a Territory or other place over which the United States has exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term not more than five years."

The plaintiff in error was indicted under this section in the Third District Court of Utah, at Salt Lake City. He was convicted. He appealed to the Supreme Court of the Territory, where the judgment of the District Court was affirmed.

That judgment is now brought to this court for review upon writ of

error.

The indictment charged that the plaintiff in error, John Miles, did, on October 24, 1878, at Salt Lake County, in the Territory of Utah, marry one Emily Spencer, and that afterwards, and while he was so married to Emily Spencer, and while she was still living, did, on the same day and at the same county, marry one Caroline Owens, the said Emily Spencer, his former wife, being still living and at that time his legal wife.

[Omitting a ruling as to the competency of jurors.]

Upon the trial, evidence was given tending to show that a short time before the date laid in the indictment, October 24, 1874, the plaintiff in error was in treaty for marrying, at or about the same time, three young women, namely, Emily Spencer, Caroline Owens, and Julia Spencer, and that there was a discussion between them on the question which should be the first wife; and that upon appeal to John Taylor, president of the Mormon Church, the plaintiff in error and the three women being present, it was decided by him that Emily Spencer, being the eldest, should be the first wife; Caroline Owens, being the next younger, the second; and Julia Spencer, being the youngest, the third wife; that being according to the rules of the church. It appeared further

that marriages of persons belonging to the Mormon Church usually take place at what is called the Endowment House; that the ceremony is performed in secret, and the person who officiates is under a sacred obligation not to disclose the names of the parties to it. It further appeared that on October 24, 1878, the plaintiff in error was married to the said Caroline Owens, and that on the night of that day he gave a wedding supper at the house of one Cannon, at which were present Emily Spencer, Caroline Owens, and others. Evidence tending to establish these facts having been given to the jury, the court permitted to be given in evidence the declarations made by the plaintiff in error, on that night, in presence of the company assembled, and on subsequent occasions, to the effect that Emily Spencer was his first wife.

Section 1604 of the Compiled Laws of Utah declares: "A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband."

Upon the trial, and after the evidence above recited had been given, tending, as the prosecution claimed, to prove the marriage of the plaintiff in error to Emily Spencer just before his marriage to Caroline Owens, the latter was offered as a witness against him to prove the same fact. Thereupon the defendant admitted, in open court, the charge of the indictment that he had been married to Caroline Owens, and even offered testimony to prove it; but this was ruled out by the court. The defendant, therefore, objected to the introduction of Caroline Owens as a witness against him, the objection being based on the statute just quoted.

The court overruled the objection and admitted her as a witness, and she gave testimony tending to prove the marriage of the plaintiff in error to Emily Spencer previous to his marriage with the witness.

It appeared from the evidence that the name of Caroline Owen's father was Maile, but that she had been adopted by an uncle and aunt named Owens, and had taken their name, by which she was called and known, but that, when she was baptized in the Mormon Church, she was required to be baptized in her father's name, and was married to Miles under that name.

The court, among other things, charged the jury as follows:

"If you find from all the facts and circumstances proven in this case, and from the admissions of the defendant, or from either, that the defendant Miles married Emily Spencer, and while she was yet living and his wife he married Caroline Owens, as charged in the indictment, your verdict should be guilty.

"A legal wife can not, but when it appears in a case that the witness is not a legal wife but a bigamous or plural wife, then she may testify

against the bigamous husband, and her testimony should have just as much weight with the jury as any other witness, if the jury believe her statements to be true. And her evidence may be taken like the evidence of any other witness to prove either the first or second marriage. And so in this case you are at liberty to consider the testimony of Miss Caroline Owens, if you find from all the evidence in the case that she is a second and plural wife, and give it all the weight you think it entitled to, and may use it to prove the first marriage alleged, to wit, the marriage of defendant and Emily Spencer, or any other fact which in your opinion is proven by the testimony, if you believe it, as you do the testimony of any witness to prove any fact about which she has testified.

"The prisoner's guilt must be established beyond a reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant's guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests.”

[Omitting a ruling as to competency of jurors.]

It is next assigned for error that the court admitted the declarations and admissions of the plaintiff in error to prove the fact of his first marriage, and the charge of the court that the declarations of the accused were evidence proper to be considered by the jury as tending to prove an actual marriage, and that such marriage might be proven like any other fact, by the admissions of the defendant or by circumstantial evidence, and that it was not necessary to prove it by witnesses who were present at the ceremony.

To hold that, on an indictment for bigamy, the first marriage can only be proven by eye-witnesses of the ceremony, is to apply to this offense a rule of evidence not applicable to any other.

The great weight of authority is adverse to the position of the plaintiff in error.

In Regina v. Simonsto,1 it was held that, on an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner; and it is for the jury to determine whether what he said was an admission that he had been legally married according to the laws of the country where the marriage was solemnized.

1 1 C. & K. 164.