PEOPLE v. HESS
286 A.D. 617 (1955)
Appellate Division of the Supreme Court of the State of New York, Third Department.
November 16, 1955.
The English case of Regina v. Topping, decided in 1856 (7 Cox C. C. 103, 169 Eng. Rep. R. 881) relied upon by the District Attorney, is distinguishable from this case and the Mosher case. Topping was a British subject who resided in England with his wife. He journeyed to Scotland, there married a woman while his wife was still living, and then returned to England where he was convicted of bigamy. The Criminal Court of Appeal affirmed the conviction holding that in the case of a bigamous second marriage the offense may be dealt with, where the offender is a British subject, in the place where the offender is apprehended or in custody, as if the offense had been there committed. But the statute the English court had under consideration (9 Geo. IV, chap. 31, § 22) differs from any enacted in this State. The English statute provided: "And be it enacted, That if any Person, being married, shall marry any other Person during the Life of the former Husband or Wife, whether the Second Marriage shall have taken Place in England, or elsewhere, every such Offender, and every Person counselling, aiding, or abetting such Offender, shall be guilty of Felony, * * *; and any such Offense may be dealt with, enquired of, tried, determined, and punished in the County where the Offender shall be apprehended or be in Custody, as if the Offense had been actually committed in that County: Provided always, that nothing herein contained shall extend to any Second Marriage contracted out of England by any other than a Subject of His Majesty". It is clear that Parliament intended to make it a crime for a British subject to contract a bigamous marriage no matter where contracted.
Although the crime of bigamy does not embrace bigamous cohabitation or living in a bigamous state, nevertheless a person who intimately cohabits in this State with a member of the
opposite sex while married to a third person is not immune from prosecution. Such conduct is made criminal by other provisions of the Penal Law.
The order should be affirmed.