of 1 Rev. Stat., 740, § 1, viz.: "A widow shall be endowed," &c.

Except perhaps for the rule that penal statutes are to be strictly construed it would seem indisputable that if a woman so divorced were to be deemed to become the widow of her former husband at his death so as to entitle her to dower, she must be held to have remained his wife, notwithstanding the divorce, during his lifetime, so as to render his subsequent marriage bigamy. But the language employed in the text, will, it is believed, avoid all question upon the subject.

She

What is proof of marriage. What is to be deemed a marriage is left to the operation of the rules of law governing that relation. It is generally understood that a marriage in fact must be proved, and that mere proof of reputation is not enough. In a recent case in the court of Appeals this rule and its limit, were carefully considered. In that case the prosecution to establish the fact of a recent marriage, called a witness who testified in substance that the prisoner conducted her to a house where he had taken rooms. The prisoner went out and returned with a person represented to be a minister. He was dressed like one, and had on a white neck-tie. did not ask his name. The marriage ceremony was then performed by this person. He used the form of marriage of the Protestant Episcopal Church. He inquired of the witness if she would take the prisoner for her husband, and she replied in the affirmative; and the prisoner was asked if he would have her for his wife, and upon his replying affirmatively, the minister declared them man and wife. The person officiating gave her a certificate, using a partly printed form, and filling in the blanks by writing. The certificate was taken by the prisoner, and put in his trunk, and was afterwards seen by a sister of the witness, when the parties were living together as man and wife. This marriage ceremony was followed by cohabitation, which continued for about a year. Held, that even if to constitute a valid marriage, it must be solemnized by a minister or magistrate, the evidence was sufficient prima facie, to prove a marriage in fact. A person appeared in the character of a clergyman, performed the ceremony, and it was followed by cohabitation. If the person officiating was not a clergyman, it was for the prisoner to show that fact. 12 Vt., 396; 10 East, 282. But in this state there may be a valid marriage, though not formally solemnized by a clergyman or consent declared before a magistrate. If parties competent to contract, in the presence of witnesses, agree together to be husband and wife, and afterwards cohabit and recognize each other as such, it is a sufficient marriage to sustain an indictment for bigamy in the event of one of the parties having before that time married another, who is

Exceptions.

still living. It was not an error therefore for the judge to instruct the jury, that if the prisoner and the witness agreed, in the presence of the man represented to be a minister, to be man and wife, and afterwards lived together as such, that was, in the eye of the law, a sufficient marriage to sustain an indictment for bigamy; the fact that the prisoner had, before that time, married Sarah E. Blair, and she was then living, being admitted; and that it was of no consequence whether the man represented to be a minister was such or not. Marriage in this state is a civil contract, and does not require the intervention of a minister or magistrate to make it legal. Hayes v. People, 25 N. Y., 390.

Whether the prisoner's confession that his first wife was living when he contracted the second marriage is sufficient evidence, see Reg. v. Flaherty, 2 Carr. & K., 782; Laugtry v. State, 30 Ala., 536; Gorman v. State, 23 Tex., 646.

$339. The last section does not extend:

1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living; nor,

2. To any person by reason of any former marriage whose husband or wife by such marriage has absented himself or herself from his wife or her husband and has been continually remaining without the United States for the space of five years together; nor,

3. To any person by reason of any former marriage which has been pronounced void, annulled or dissolved by the judgment of a competent court, unless such marriage was dissolved upon the ground of adultery committed by such person; nor,

4. To any person by reason of any former marriage with a husband or wife who has been sentenced to imprisonment for life.

Founded upon 2 Rev. Stat., 687, § 9.

Subd. 1. What proof of the defendant's knowledge that the former husband or wife was living when the second marriage was contracted, is proper, depends upon the facts of each case. Reg. v. Ellis, 1 Fost. & F., 309.

Where the prisoner was indicted for bigamy, and no evidence was given on either side as to the prisoner's knowledge that his wife was alive, but it was proved that

they had separated by agreement in 1843, and that in
1857 the prisoner produced her at a trial in which he
was interested; Held, that it was for the jury to say
whether there was an absence of knowledge on the part
of the prisoner that his wife was alive in 1855, the date
of the second marriage. Reg. v. Cross, 1 Fost. & F., 510.

Upon a trial for bigamy, where it appeared that the
first husband had been continually absent from the priso-
ner for the space of seven years next preceding the sec-
ond marriage, the jury being asked to consider whether
she knew her husband to be alive at the time of the
second marriage; and, if not, whether she had had the
means of acquiring the knowledge: found that they had
no evidence of her knowledge, but were of opinion that
she had the means of acquiring knowledge, if she had
chosen to make use of them: Held, that upon that find-
ing the conviction could not be sustained, inasmuch as it
left it uncertain whether, in fact, she had or had not the
knowledge. Reg. v. Briggs, 7 Cox Crim. Cas., 175.

That express proof that the former husband or wife was living is not always required, but strong presumption of continued life may suffice. See Gorman v. State, 23 Tex., 646.

Subd. 3 In order to attain greater conciseness, and to render the provisions of the text conformable to the nomenclature respecting proceedings in courts of justice introduced by the Code of Procedure, subdivision 3 in the text is substituted for the following subdivisions of the section as it stands in the Revised Statutes:

"3. To any person by reason of any former marriage which shall have been dissolved by the decree of a competent court for some cause other than the adultery of such person: nor,

"4. To any person by reason of any former marriage which shall have been pronounced void by the sentence or decree of any competent court on the ground of nullity of the marriage contract; nor,

"5. To any person by reason of any former marriage contracted by such person, within the age of legal consents, and which shall have been annulled by the decree of a competent court."

Place of trial. The substance of the provisions of 2 Rev. Stat., 688, § 10, declaring bigamists triable in the county where apprehended as well as in the county where the offense was committed has been embodied in Rep. Code Cr. Pro., § 135.

ment of

$340. Every person guilty of bigamy is punishable Punishby imprisonment in a state prison not exceeding five bigamy.

years.

See 2 Rev. Stat., 687, § 8.

Other

unlawful

S 341. Every person who knowingly marries the marriages. husband or wife of another, in any case in which such husband or wife would be punishable according to the foregoing provisions, is punishable by imprisonment in a state prison not exceeding five years or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.

Incest.

Crime

against

nature.

See 2 Rev. Stat., 688, § 11. That provision, as now in force, applies only to unmarried persons; the idea being, doubtless, that a married person who knowingly marries the husband or wife of another, is punishable for the higher offense of bigamy, by reason of his or her own previous marriage. But to sustain a prosecution for bigamy the people must be prepared to prove the first marriage of the accused. A case might arise in which a married person contracting a marriage with a husband or wife of another might escape an indictment for bigamy for want of evidence of an earlier marriage, and yet, if indicted under section 11 of 2 Rev. Stat., 688, defeat the prosecution by proof of such earlier marriage. The Commissioners have, therefore, omitted the word "unmarried." It may be remarked that by a subsequent section it is provided that where an act or omission is made punishable in different ways by different provisions of this Code, it may be punished under either of said provisions, but not under more than one. Therefore, under the above sections, as reported by the Commissioners, a person supposed to be married, and charged with marrying the husband or wife of another may be indicted either for bigamy under section 338, or for the felony prohibited by section 341, according as it may be easiest to prove the former marriage of the accused or that of the person with whom the accused has now intermarried.

S 342. Persons who, being within the degrees of consanguinity within which marriages are, by section 30 of the Civil Code, declared incestuous and void, intermarry with each other, or commit adultery or fornication with each other, are punishable by imprisonment in a state prison not exceeding ten years.

2 Rev. Stat., 688, § 12.

S343. Every person who is guilty of the detestable and abominable crime against nature, committed with

mankind or with a beast, is punishable by imprisonment in a state prison not exceeding ten years.

2 Rev. Stat., 689, § 20.

S 344. Any sexual penetration, however slight, is sufficient to complete the crime against nature. See 2 Rev. Stat., 735, § 18.

Crime against nature.

CHAPTER VI.

VIOLATING SEPULTURE AND THE REMAINS OF THE
DEAD.

SECTION 345. Right to direct disposal of one's own body after death.

346. Duty of burial.

347. Burial in other states.

348. Dissection when allowed.

349. Unlawful dissection a misdemeanor.

350. Remains after dissection must be buried.
351. Dead limb or member of a human body.
352. Who are charged with duty of burial.
353. Punishment for omitting to bury.

354. Who entitled to custody of a body.

355. Unlawful removal of or interference with the bodies of the

dead.

356. Purchasing corpses forbidden.

357. Unlawful interference with places of burial.

358. Removal from one burial place to another.

359. Arresting or attaching a dead body.

360. Disturbing funerals.

361. Defacing tombs, monuments, &c.

362. Unlawful dissection.

S345. Every person has the right to direct the manner in which his body shall be disposed of after his death; and to direct the manner in which any part of his body which becomes separated therefrom during his lifetime shall be disposed of. The provisions of this chapter do not apply where such person has given directions for the disposal of his body or any part thereof inconsistent with those provisions.

burial.

S346. Except in the cases in which a right to dis- Duty of sect a dead body is expressly conferred by law, every