Braun v. State

Bruns, C. J., delivered the opinion of the Court. The appellant was tried in the Criminal Court of Baltimore ⁸⁵ before the court, sitting without a jury, on a charge of bigamy, was found guilty, and was sentenced to five years’ imprisonment. In his brief, his first point was based upon the facts that his first wife testified that she and the defendant were married in Pittsburgh, Pennsylvania, in 1955, by a religious ceremony, but that the marriage record offered in evidence by the State after the wife had testified showed that the marriage was performed by an Alderman in a civil ceremony. It is conceded that a marriage by either form of ceremony was valid under the laws of Pennsylvania.

Even if the error in the wife’s testimony had been deliberate (and there is nothing to show that it was), it was hardly material, and in any event it was promptly corrected by the State’s offering the record. There is no merit in this contention and it was abandoned at the argument. The appellant’s main contention is that when he entered into the marriage with his second wife in Maryland in 1961, he believed that his first wife had divorced him, that he, therefore, lacked any wrongful intent and hence was not guilty of bigamy. He was prosecuted under § 18 of Art. 27 of the Code (1957) which provides in part: “Whosoever being married and not having obtained an annulment or a divorce a vinculo matrimonii * * *, the first husband or wife (as the case may be) being alive, shall marry any person, shall undergo a confinement in the penitentiary for * * * not less than eighteen months nor more than nine years; provided, that nothing herein contained shall extend to any person whose husband or wife shall be continuously remaining beyond the seas seven years together, or shall be absent * * * seven years together, in any part within the United States or elsewhere, the one of them not knowing the other to be living at that time.” 1 ⁸⁶ Most American jurisdictions which have considered the question hold that the fact that the defendant may have believed in good faith that there had been a prior divorce or that a prior divorce was valid is no defense to a charge of bigamy if in fact there has been no divorce or it is invalid.

See Wharton's Criminal Law and Procedure (Anderson Ed., 1957), § 721, p. 529; Clark & Marshall on Crimes (6th Ed., 1958, Wingersky Rev.), §§ 5.11, 11.12. Most American jurisdictions also follow a similar rule where the defendant in good faith, but mistakenly, believes his or her first spouse to be dead. Clark & Marshall, op. cit. supra, § 5.11. On the general subject see also the cases cited by the above authorities and Clark & Marshall, op. cit. supra, § 5.10, dealing generally with the question of criminal intent, and as to belief that the first spouse is dead or divorced, an annotation, and the cases therein referred! to, in 57 A.L.R. 792 .

There are some authorities contrary to the majority view, which largely follow Reg. v. Tolson, [1889] 23 Q.B.D. 168. In that case it was held by nine of the judges, with five dissenting, that the defendant’s belief in good faith and on reasonable grounds at the time of her second marriage that her first husband, who had deserted her more than seven years earlier, was dead, constituted a defense to a charge of bigamy under the statute of 24 & 25 Victoria, c. 100, s. 57, which is similar to our present statute against bigamy. Polson was, however, limited by Rex v. Wheat, [1921] 2 K.B. 119, which involved the same statute. There the court unanimously held that ⁸⁷ a mistaken belief that a divorce had been granted afforded no defense, and distinguished Tolson.

See also In re Russell [1901] A.C. 446 (House of Lords). 2 Mr. Hochheimer in his work on Criminal Raw (2nd Ed.) § 272, p. 306, states that “An honest, reasonably grounded belief that the former husband or wife is dead, or that a former marriage was dissolved by divorce, has been held to constitute a defense to a charge of bigamy.” As to a belief that the first spouse is dead, he cites Reg. v. Tolson, supra, in support of his statement and Comm. v. Mash, 7 Metc. (Mass.) 472, as contra. With regard to divorce, he cites Squire v. State, 46 Ind. 459 in support of his statement and Davis v. Comm., 13 Bush (Ky.) 318, 322 , and Russell v. State, 66 Ark. 185, as opposed. He, of course, did not cite Rex v. Wheat, supra, which is contra to his statement, since it was not decided until some years later.

As we have already stated, the present weight of authority in this country is against the views seemingly taken by Mr. Hochheimer. This court has not previously been called upon directly to decide in a prosecution for bigamy whether or not a belief on the part of the defendant that he and his first wife have been divorced constitutes a good defense. Expressions of this court in prior cases point clearly to a view in accord with that held by the majority of American cases and also that of Rex v. Wheat, supra. There is quite a full discussion of the subject of a mistaken belief based upon a mistake of law in Geisselman v. Geisselman, 134 Md. 453 , 107 A. 185 (1919) which was a divorce case.

The first wife had been convicted of a crime and sentenced to imprisonment. The husband thought that this left him free to remarry, and he proceeded to do so in Maryland, and the second marriage was consummated. He was indicted for bigamy, pleaded guilty and was paroled. He sued for a divorce from his first wife, but his bill was dismissed on the ground of recrimination.

The decree of dismissal was affirmed. This court held that the husband’s mistake of law did not excuse ⁸⁸ him from the charge of adultery. In reaching this conclusion the court relied largely on the analogy to bigamy cases and dismissed a number of authorities in other jurisdictions, including Reg. v. Tolson, supra). It reviewed a number of authorities and found the majority rule in this, country to be opposed to Tolson, and declined to adopt the minority or Tolson view.

This court, after referring to American authorities, said ( 134 Md., at 458 ) : “There would seem to be no doubt that under the above authorities, and others might be cited, the appellant could not have escaped conviction for bigamy * * *." The court left open the possibility that under some circumstances a bona fide mistake of fact under which a man had married a woman other than his real wife and had cohabited with her might be a bar on the ground of recrimination to his obtaining relief in a suit against his first wife if he was justified in his mistaken belief and had not been negligent or lax in endeavoring to ascertain the actual facts before entering into the second marriage ( 134 Md., at 462 ), but held that in the Geisselman case the mistake was one of law and not one of fact, and took the general rule that a mistake of law will not excuse one charged with adultery ( 134 Md., at 463 ). In Slansky v. State, 192 Md. 94 , 63 A. 2d 599 , a man had gone to another state and had there obtained a divorce from his first wife. A few days later he married his second wife in Maryland and was thereafter prosecuted for and convicted of bigamy. He relied upon the divorce obtained elsewhere, but under advisory instructions from the court (which were not challenged) as to the effect of the decree of another state and with regard to domicile, the defendant was found guilty.

His principal contention on appeal was