People v. Brown

Cooley, Ch. J:

The defendant seeks to avoid the penalties of a bigamous-marriage by showing that he is a negro, and that the other party to the marriage was a white woman, with whom under the statute it was impossible for him to contract marriage-at all. — Gomp. L., § 4724. The argument is, that if the ceremony of marriage has taken plaee between parties who, if single, would be incapable of contracting marriage, the-marriage ceremony is merely idle and void, and the respondent cannot be said to have been married the second time-at all.

The logic of the argument is- not very obvious. It certainly cannot be based upon any idea that there must be-something 'of binding and obligatory force in the second, *341 marriage; for every bigamous marriage is void, and it is the entering into the void marriage while a valid marriage exists that the statute punishes. Nor can we understand of what importance it can be that there are two elements of illegality in the case instead of one, or why the party should be relieved from the consequences of violating one statute because the act of doing so was a violation of another also.

The authorities sanction no such doctrine. There are loose statements in some of the cases that the second marriage must have been one that, but for the existence of the first, would have been valid; but these evidently relate to the acts and intent of the parties, and not to the legal ability to unite in a valid relation. It was decided in Rex v. Penson, 5 C. & P., 412, that bigamy was committed in marrying a woman under an assumed name, though by law such a marriage' between persons capable of contracting would be void. The case of Regina v. Brawn, 1 C. & K., 144, was similar to the present in its facts, and Lord Denman in summing up said: “It is the appearing to contract a second marriage, and the going through the ceremony, which constitutes the crime of bigamy, otherwise it never could exist in ordinary cases, as a previous marriage always renders null and void a marriage that is celebrated afterwards by either of the parties during the lifetime of the other. Whether therefore the marriage of the two prisoners was or was not in itself prohibited, and therefore null and void, does not signify, for the woman, having a husband then alive, has committed the crime of bigamy, by doing all that in her lay by entering into marriage with another man.” These cases are recognized in the case of Hayes v. People, 25 N. Y., 390 , which is relied upon by the respondent, but which affords no countenance for his exceptions.

The recorder’s court must be advised that we find no error in the record, and that judgment should be pronounced on the verdict.

The other Justices concurred.