draw that inference. Thus the question is entirely for the jury. The law makes no presumption either way. The cases cited of Rex v. Twyning, 2 Barn. & Ald. 386; Rex v. Harborne, 2 Ad. & El. 540, and Nepean v. Doe, 2 Mees. & W. 894, appear to us to establish this proposition. Where the only evidence is that the party was living at a period which is more than seven years prior to the second marriage, there is no question for the jury. The proviso in the act (24 & 25 Vict. chap. 100, § 57) then comes into operation, and exonerates the prisoner from criminal liability, though the first husband or wife be proved to have been living at the time when the second marriage was contracted. The legislature by this proviso sanctions a presumption that a person who has not been heard of for seven years is dead; but the proviso affords no ground for the converse proposition, viz: that when a party has been seen or heard of within seven years, a presumption arises that he is still living. That is always a question of fact."

509. Rule under the Common Law.-Where a suit for divorce originated at an early day, and occurring on a state of facts at a time when the common law was not the rule of action as part of the law of the country, it was held that "cohabitation and common repute, as establishing a former marriage in countries governed by the common law, cannot be admitted as evidence to annul a subsequent marriage contracted here while Texas was a part of Mexico, and solemnized according to the laws which then governed this country." And in such case it was further held that "the production of a certified copy from the office of a county recorder in the state of Missouri of a certificate under the sign manual of a justice of the peace that he had solemnized such former marriage according to law, cannot be admitted as competent evidence to establish such foreign marriage to the exclusion of the domestic marriage, without due proof of the laws of that state relating to the subject-matter." Smith v. Smith, 1 Tex. 621, 46 Am. Dec. 121; Rice v. Rice, 31 Tex. 174.

After the common law became the rule of action, it was held that "proof of general reputation, cohabitation of parties, and gen eral reception as man and wife, was competent evidence in a suit for divorce." Wright v. Wright, 6 Tex. 3.

§ 510. Domestic Marriage, how Proved.-Proof of a domestic marriage, or one thus solemnized, may unquestionably be made

by the record, or by a certified copy thereof. Rev. Stat. art. 2252. This however is nowhere declared the only, or even the best mode of making the proof in domestic marriages. It is believed that even in such cases, without the introduction of the record at all, the fact may be fully and completely established by the testimony of eye-witnesses who were present when the rites were solemnized. Where no rule of proof is expressly prescribed by statute, the marriage may be proven by parol.

Mr. Bishop says: "The common course of proof is to present the record evidence, and with it, evidence to identify the parties, and these are prima facie sufficient. The testimony of persons present at the marriage is good evidence without the record, though the absence of the record may, under some circumstances, create suspicion." Bishop, Statutory Crimes, § 610.

Where the time and place of the first marriage are known, the rules thus announced clearly indicate the character and sufficiency of the evidence to be adduced. But in prosecutions for bigamy it happens, in a majority of instances, perhaps especially where the first marriage took place, as is generally the case with bigamists, in some other state or country, that the prosecuting officer must be wholly ignorant of, and that it is impossible for him to find out, the time and place of the prisoner's first marriage, or the names and residences of those present at its consummation. Such avenues of information are generally endeavored to be concealed by the guilty party. Where they are thus concealed, and the prosecution has been unable to find, open up and produce them, what evidence aliunde must and can be produced to supply their places? We find, in a note to the case of Taylor v. State, 52 Miss. 84, reproduced in 2 Hawley's American Criminal Reports, the following apt observations on this subject by the editor. He says: "In some states it has been held, where in a criminal case it was found necessary to prove a marriage in order to convict a defendant of a crime with which he was charged, that all the essentials to a valid marriage must be strictly proved, as well as the law of the state or country where the marriage was celebrated; and also that the admissions of the defendant's cohabitation and reputation were not sufficient evidence of such marriage. But experience has proven that such a rule in the United States amounts, in a large number of cases, to a denial of justice. Our people are migratory in their habits, and very many of our foreign

born citizens were married in the countries where they were born. To prove, in Missouri, a marriage which was celebrated in Bavaria, or even in Canada, within the rule adopted in some cases, is oftentimes an impossible task. Doubtless on account of this difficulty, the rule has been modified, and the better doctrine now is that cohabitation, reputation and admissions, are sufficient evidence of a legal marriage to submit to a jury." 2 Hawley, Am. Crim. Rep. 17. The doctrine and the opposing and conflicting authorities are all fully noted by the editor in his note.

In Re Phené, L. R. 5 Ch. App. 139, the question whether there was any presumption of law that a person continued to live arising upon proof of prior existence was very fully discussed and it was held that the law makes no such presumption. This was held to apply to civil and criminal cases alike. This question was also discussed at length by Field, J., in a case (Montgomery v. Bevans, 1 Sawy. 666) tried before him in the United States circuit court for California. He reviewed several of the English cases considered in Re Phené, as well as this case, and came to the conclusion that the law as declared in England in Re Phené was different from the law which obtains in this country, stating at the time that when this presumption of the continuance of life conflicts with the presumption of innocence, the latter prevails. In the opinion delivered in the case referred to, the learned justice says: "But the law as thus declared in England is different from the law which obtains in this country, so far as it relates to the presumption of the continuance of life. Here, as in England, the law presumes that a person who has not been heard of for seven years is dead, but here the law, differing in this respect from the law of England, presumes that a party once shown to be alive continues alive until his death is proved, or the rule of law applies by which death is presumed to have occurred, that is, at the end of seven years. And the presumption of life is received, in the absence of any countervailing testimony, as conclusive of the fact, establishing it for the purpose of determining the rights of parties as fully as the most positive proof. The only exception to the operation of this presumption is when it conflicts with the presumption of innocence, in which case the latter prevails." Montgomery v. Bevans, 1 Sawy. 666. The rule thus stated as to these conflicting presumptions by Field, J., is sustained by Rex v. Twyning, 2 Barn. & Ald. 385.

§ 511. Views of an Eminent Text-writer.-The offense consists in entering into a void marriage where a valid one already exists. Proof of an actual or ceremonial first marriage is not necessary; but evidence that the prisoner has declared himself and has been reputed to be married will suffice. This, however, is denied in some states. In some states a party against whom a divorce is obtained may not marry while the other party is living, and disobedience is bigamy. But a remarriage out of the state, followed by a return to the state, is not bigamy, even if the second wife is an inhabitant of that state, and the parties went away to evade the law. Browne, Crim. L. p. 39, citing People v. Brown, 34 Mich. 339, 22 Am. Rep. 531; Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225; Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; Parker v. State, 77 Ala. 77, 53 Am. Rep. 643; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; Com. v. Littlejohn, 15 Mass. 163; State v. Roswell, 6 Conn. 446; People v. Humphrey, 7 Johns. 314; Green v. State, 21 Fla. 403, 58 Am. Rep. 670; Com. v. Putnam, 1 Pick. 136; People v. Faber, 92 N. Y. 146, 44 Am. Rep. 357; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505.

512. Actual Marriage must be Shown.-Mr. Bishop says: "Record evidence and evidence of witnesses present at the ceremony will be required where these can be had. But where the circumstances of the particular case show that these cannot be had, and in all cases as confirmatory of them, and in the proper cases as dispensing with them, it is competent to show the admissions of the party or his prior cohabitation under pretense of marriage, and various other things of like import." Bishop, Statutory Crimes, § 609.

In Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225, where the question before the court was what proof of marriage was admissible and sufficient in a case of bigamy, the court says: "The circuit judge seems to have been of the opinion that an indictment for bigamy could not be maintained without proof of the fact of two marriages, either by record evidence or by the testimony of one or more witnesses who were present at the solemnization of the marriage rites; or, in other words, that the declarations and conduct of defendant, admitting his marriage, and

living with and recognizing the woman as his wife, were not sufficient to warrant the jury in finding a verdict against him. This is a subject about which there is irreconcilable conflict in the authorities. In Massachusetts, New York and Connecticut, and perhaps in some other states, it has been held that in prosecutions for bigamy an actual marriage of the prisoner must be proven, and that neither cohabitation, reputation, nor the confessions of the prisoner are admissible for that purpose, or if admissible, are not of themselves sufficient to warrant conviction. Com. v. Littlejohn, 15 Mass. 163; State v. Roswell, 6 Conn. 446; People v. Humphrey, 7 Johns. 314. On the other hand, it has been held in South Carolina, Virginia, Georgia, Alabama, Ohio, Pennsylvania, Maine and Illinois, that in prosecutions for bigamy the confessions of the prisoner deliberately made are admissible as evidence to prove marriage in fact, and in some of those states that such confessions are of themselves sufficient to authorize the jury to convict. State v. Britton, 4 McCord. L. 256; State v. Hilton, 3 Rich. L. 434, 45 Am. Dec. 783; Warner v. Com. 2 Va. Cas. 95; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Cameron v. State, 14 Ala. 546, 48 Am. Dec. 111; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373; Com. v. Murtagh, 1 Ashm. 272; Ferner v. Hallacher, 8 Serg. & R. 159; Cayford's Case, 7 Me. 57; Ham's Case, 11 Me. 392; State v. Hodgskins, 19 Me. 155; Jackson v. People, 3 Ill. 231."

§ 513. First Marriage may be Proved by Confession.In Miles v. United States, 103 U. S. 304, 26 L. ed. 481, 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 v. People, 3 Ill. 231, this last opinion cites Reg. v. Simmonsto, 1 Car. & K. 164, cited in 1 Russell, Crimes (Greaves' ed.) 218; Dutchess of Kingston's Case, 20 How. St. Tr. 355; Rex v. Trueman, 1 East, P. C. 470; State v. Libby, 44 Me. 469; Rex v. Norwood, 1 East, P. C. 470; Reg. v. Newton, 2 Mood. & R. 503; State v. McDonald, 25 Mo. 176; State v. Seals, 16 Ind. 352; Brown v. State, 52 Ala. 338; Williams v. State, 44 Ala. 24. In Langtry v. State, 30 Ala. 536, it was held that in prosecutions