DELAPLAINE, J., delivered the opinion of the Court.
Gerald B. Wright, age 36, a circulation man for a Washington newspaper, was tried before a jury in the Circuit Court for Prince George's County on an indictment for bigamy. The indictment charged that on October 3, 1948, Wright, "being married to one Imogene Wright, the said marriage not having been dissolved by annulment or divorce a vinculo matrimonii, the said Imogene Wright being then alive, with force and arms did feloniously marry and take as his wife one Jean Dunn." A certificate of the Clerk of the Circuit Court for Cecil County showed that defendant married Imogene Bissell, of Washington, at Elkton on June 27, 1947; and a certificate of the Clerk of the Circuit Court for Prince George's County showed that defendant married Jean Dunn, of University Park, at Hyattsville on October 3, 1948.
Defendant made the defense that he had married a divorced woman named Dell Thompson in Florida, in August, 1941; that the Florida marriage had not been dissolved prior to the time when he married in Elkton in 1947; and therefore the marriage in Elkton was a nullity. There was no positive proof that the Florida marriage had ever been terminated by death or by annulment or divorce. The trial judge refused to advise an acquittal, but submitted the case with advisory instructions to the jury. Defendant was found guilty and was sentenced to confinement in the Maryland Penitentiary for a term of seven years. He has appealed here from the judgment of conviction.
While it is the second marriage that constitutes the crime of bigamy, the first marriage is part of the corpus delicti. Accordingly it is a good defense to an indictment for bigamy that the first marriage was void, since bigamy can be committed only by the marriage of a person already married. Hence, in a prosecution of husband for a bigamous third marriage while still married to his second wife, he cannot be convicted if it appears that he had married the second wife during the first wife's life, because at the time of the third marriage he was not legally married to the second wife. State v. Sherwood, 68 Vt. 414, 35 A. 352; State v. Goodrich, 14 W.Va. 834; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; McCombs v. State, 50 Tex. Cr. Rep. 490, 99 S.W. 1017, 9 L.R.A., N.S., 1036; 3 Greenleaf on Evidence, 16th Ed., sec. 208.
We acknowledge that a certified copy of an official record of a marriage is not the only means of establishing proof of the marriage. Admissions and declarations of the husband and wife are admissible to prove their marriage. Hensel v. Smith, 152 Md. 380, 389, 136 A. 900. A marriage may also be proved by the testimony of persons who attended the wedding. Whatever is admissible under the general rules of evidence and satisfies the triers of the facts to the requisite degree of certainty is sufficient to prove a marriage. State v. Sherwood, 68 Vt. 414, 35 A. 352. Of course, the safest practice is to present the record evidence, which is prima facie sufficient. While the testimony of husband or wife
The basic issue on this appeal is whether the evidence in the case was legally sufficient to justify submission of the case to the jury. In 1949 the Legislature proposed a constitutional amendment to Article 15, Section 5, of the Constitution of Maryland providing that in the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. Laws of 1949, ch. 407. The proposed amendment was adopted by the voters of the State at the election in November, 1950, but it did not become effective until the Governor's proclamation under Article 14, Section 1, of the Constitution. Worman v. Hagan, 78 Md. 152, 165, 27 A. 616, 21 L.R.A. 716. Governor Lane issued this proclamation on December 1, 1950. The instant case was tried in the Court below on November 30, 1950. Therefore, the constitutional amendment was not in effect at the time of the trial and the verdict in the case.
The Criminal Rules of Practice and Procedure, which were adopted by the Court of Appeals in December, 1949, and which applied to cases heard in the trial courts on and after January 1, 1950, provided that at the conclusion of the evidence for the State, the accused could request an instruction that the evidence was insufficient in law to justify his conviction. The request for such an instruction could be renewed at the end of the whole case. At the time of the trial of this case the instruction could be advisory only, although the refusal of the trial court to grant such an advisory instruction was reviewable by the Court of Appeals. That situation was changed
Under the rule prior to the constitutional amendment, it was the duty of the trial court, when requested, to give the jury an advisory instruction whether or not there was evidence legally sufficient to sustain a conviction. The giving or refusal of such an instruction is reviewable by the Court of Appeals. If there is any evidence before the jury on which to base a conviction, this Court will not disturb the verdict and will not inquire into or measure the weight of the evidence, for in such a case a request for a peremptory direction for a verdict of not guilty or similar advisory instruction is properly refused. Commonwealth v. Merrill, 14 Gray, Mass., 415, 77 Am. Dec. 336, 338; Utterback v. Commonwealth, 190 Ky. 138, 226 S.W. 1065; State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A.L.R. 902, 914; France v. United States, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595; Humes v. United States, 170 U.S. 210, 18 S.Ct. 602, 42 L.Ed. 1011.
Defendant contends that there is no evidence that his Florida bride was not living at the time he married in Elkton in 1947 or that she had ever obtained a divorce from him. He testified that after he lived with her two or three weeks, she declared that she was going to get a divorce from him and that she was returning to her first husband. Soon afterwards he entered the military service and was overseas for nearly three years. When he returned to the United States, he wrote a letter of inquiry to Tallahassee in the hope of finding out whether his wife had obtained a divorce in Florida, but he did
The essential question now before us is whether the marriage in Elkton was in fact valid. The question is not whether defendant assumed that it was valid or whether he entered into it without apparently being concerned whether it was valid or not. Compare State v. Sherwood, 68 Vt. 414, 35 A. 352. In a prosecution for bigamy the burden is on the State to prove by competent evidence beyond a reasonable doubt that the first marriage was valid, and that the first spouse was living at the time of the second marriage. Fuquay v. State, 217 Ala. 4, 114 So. 898, 56 A.L.R. 1264; Hiler v. People, 156 Ill. 511, 41 N.E. 181; Dunlap v. State, 126 Tenn. 415, 150 S.W. 86, 41 L.R.A., N.S., 1066; State v. Yoder, 113 Minn. 503, 130 N.W. 10, L.R.A. 1916 C., 686; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241.
However, the law presumes that a marriage continues until it is shown that it was terminated by death or by annulment or divorce. Hensel v. Smith, 152 Md. 380, 391, 136 A. 900. Proof of the first marriage in a prosecution for bigamy raises a prima facie presumption that there was no legal impediment to it, and in the absence of any evidence tending to show that there was some impediment, such proof is sufficient to warrant the jury in finding a valid marriage. State v. Davis, 109 N.C. 780, 14 S.E. 55; Ferrell v. State, 45 Fla. 26, 34 So. 220, 223; State v. Kniffen, 44 Wn. 485, 87 P. 837. Where the first marriage and the continuance of the life of the first wife are proved, the burden is cast upon the accused to show that a divorce was granted before the second marriage was performed. The State is not required to
Where there is no direct proof that a defendant's wife was alive at the time of his second marriage, the presumption of the continuance of life conflicts with the presumption of innocence and these presumptions combine variously according to the circumstances of particular cases. The so-called presumption of divorce, sometimes applied in civil cases, has no place in the defense of a prosecution for bigamy. Fletcher v. State, 169 Ind. 77, 81 N.E. 1083; Lesueur v. State, 176 Ind. 448, 95 N.E. 239; Long v. State, 192 Ind. 524, 529, 137 N.E. 49, 24 A.L.R. 1234; Fuquay v. State, 217 Ala. 4, 114 So. 898, 56 A.L.R. 1264; Bennett v. State, 100 Miss. 684, 56 So. 777. Other adjudications, such as Fleming v. People, 27 N.Y. 329, while not specifically referring to the presumption of divorce, have ruled that the State in a prosecution for bigamy need not prove that a divorce has not been granted.
We think the general rule that the presumption of divorce has no place in a criminal case applies in a bigamy case where there were three marriages and the issue is whether there was a divorce prior to the second and third marriages. In Maryland the presumption of divorce has never been applied blindly even in civil cases without due regard to the facts of the particular case which may or may not make it a reasonable inference. Dukes v. Eastern Tar Products Corporation, 197 Md. 564, 80 A.2d 39. In Schmeizl v. Schmeizl, 184 Md. 584, 594, 42 A.2d 106, 111, Judge Markell, in discussing the presumption of innocence and the presumption of divorce in reference to the claim of an alleged widow, said: "It can not be assumed, in order to exonerate her from bigamy, that she is guilty of perjury both in obtaining a fraudulent divorce * * * and in prosecuting a fraudulent claim as widow."
In this case we think that if the presumption of divorce is not applicable to create a reasonable doubt of continuation of the Elkton marriage, it cannot prove beyond a reasonable doubt the termination of the Florida marriage. We conclude that the evidence is not legally sufficient to convict, and the trial judge should have so instructed the jury. We cannot hold otherwise because, as the trial judge expressed it, defendant may escape a charge of bigamy by showing himself guilty of "trigamy."
Judgment reversed and new trial awarded.