his conduct is covered by some penal statute.385

Public immorality or indecency, however, stands upon a different ground. Because of its manifest tendency to corrupt the morals of the community, or to shock the public sense of morality and decency, public immorality and indecency is a common nuisance and a misdemeanor at common law. It may therefore be laid down as a general rule, as stated above, that any act which has a direct tendency to corrupt the public morals, or which tends to shock the public sense of morality and decency, is a misdemeanor, whether covered by any statute or not.386 For this reason it is

a misdemeanor to keep a common bawdy house or a common gaming house, to be guilty of open and notorious lewdness, to indecently expose the person in public, to publish obscene literature or pictures, to be guilty of blasphemy, profanity, or drunkenness in public, to give an obscene or indecent exhibition, etc. In all jurisdictions, statutes have been enacted specifically punishing various acts of immorality and indecency.

459. Bigamy-(a) In General.-Bigamy is committed where a person who is already legally married marries another person during the life of his or her wife or husband.387 It is punished in England and in this country by statute, except in certain

cases.

Bigamy is not a common-law offense.388 It was first made an offense cognizable by the civil courts, and punishable as a

385 Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776; State v. Brunson, 2 Bailey (S. C.) 149; Delany v. People, 10 Mich. 241; State v. Calley, 104 N. C. 858, 10 S. E. 455, 17 Am. St. Rep. 704; People v. Buchanan, 1 Idaho, 681; Bell v. State, 1 Swan (31 Tenn.) 42, Mikell's Cas. 59.

386 Rex v. Delaval, 3 Burrow, 1434, Beale's Cas. 101; Rex v. Curl, 2 Strange, 788; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, 7 Am. Dec. 632, Beale's Cas. 113; Kanavan's Case, 1 Me. 226, Beale's Cas. 115; Britain v. State, 3 Humph. (Tenn.) 203; State v. Appling, 25 Mo. 315, 69 Am. Dec. 469; Barker v. Com., 19 Pa. 412; and cases cited specifically in notes following.

387 Steph. Dig. Crim. Law, art. 257.

388 4 Bl. Comm. 163; State v. Burns, 90 N. C. 707.

* * *

felony, by the statute of 1 James I. c. 2. Prior to this statute it was punished only as a canonical offense in the ecclesiastical courts. Statutes punishing the offense have also been enacted in this country. The present English statute declares that "whosoever, being married, shall marry any other person during the life of the former husband or wife, shall be guilty of felony," but contains a proviso that nothing in the section shall apply "to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time," nor to "any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage," nor to "any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction."389 The statutes in this country are similar, and very generally contain similar provisos.

(b) The Bigamous Marriage.-Of course bigamy cannot be committed unless there is a marriage, or, rather, unless the parties go through the form or ceremony of a marriage.390 The marriage need not be valid. It cannot be, for the prior marriage necessarily renders it void.391 According to the better opinion, it need not even be such that it would be valid if there had not been any prior marriage. 392 Certainly that it is voidable merely is no defense,393 and a common law marriage is sufficient in jurisdictions where such marriages are recognized.393a

389 24 & 25 Vict. c. 100, § 57. Similar to 9 Geo. IV. c. 31, § 22. 390 Reg. v. Allen, L. R. 1 C. C. 367, 12 Cox, C. C. 193; Beggs v. State, 55 Ala. 108.

391 See Com. v. McGrath, 140 Mass. 296, 6 N. E. 515; supra, note 395.

392 Reg. v. Brawn, 1 Car. & K. 144, 1 Cox, C. C. 33; Reg. v. Allen, L. R. 1 C. C. 367, 12 Cox, C. C. 193; People v. Brown, 34 Mich. 339, 22 Am. Rep. 531; Hayes v. People, 25 N. Y. 390, 82 Am. Dec. 364. Contra, Reg. v. Fanning, 17 Ir. C. L. 289, 10 Cox, C. C. 411.

393 See Reg. v. Asplin, 12 Cox, C. C. 391.

393a People v. Mendenhall, 119 Mich. 404, 78 N. W. 325, 75 Am. St. Rep. 408. And see People v. Beevers, 99 Cal. 286, 33 Pac. 844.

(c) Cohabitation after the bigamous marriage is not necessary.394

(d) The Prior Marriage.-By the very terms of the statute, the party marrying, to be guilty of bigamy, must be already married to another person. If the prior marriage was void, either because of want of mutual consent, or because the other party thereto was already married, or because of consanguinity between the parties within the prohibited degrees, or because of civil conditions, or for any other reason, the offense is not committed.395 It is otherwise, however, if the prior marriage is merely voidable, and has not been annulled or avoided.398 As

394 State v. Patterson, 2 Ired. (N. C.) 346, 38 Am. Dec. 699; Com. v. Lucas, 158 Mass. 81, 32 N. E. 1033; Nelms v. State, 84 Ga. 466, 10 S. E. 1087, 20 Am. St. Rep. 377; U. S. v. West, 7 Utah, 437, 27 Pac. 84.

395 Reg. v. Chadwick, 11 Q. B. 173, 205, 2 Cox, C. C. 381; Kopke v. People, 43 Mich. 41, 4 N. W. 551; Davis v. Com., 13 Bush (Ky.) 318; State v. Cone, 86 Wis. 498, 57 N. W. 50; Holbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; Com. v. McGrath, 140 Mass. 296, 6 N. E. 515; Lane v. State, 82 Miss. 555, 34 So. 353.

This applies where a man marries a third time after the death of the first wife. The second marriage is void because of the prior first marriage, and the third marriage, therefore, is legal, and not bigamous. Reg. v. Willshire, 6 Q. B. Div. 366, 14 Cox, C. C. 541; State v. Sherwood, 68 Vt. 414, 35 Atl. 352; People v. Corbett, 49 App. Div. 514, 63 N. Y. Supp. 460; Keneval v. State, 107 Tenn. 581, 64 S. W. 897; Holbrook v. State, supra.

Where the second marriage becomes valid, under the statute, by removal of the impediment during cohabitation, the third marriage is bigamous. Com. v. Josselyn, 186 Mass. 186, 71 N. E. 313.

396 Rex v. Jacobs, 1 Mood. C. C. 140; Beggs v. State, 55 Ala. 108; State v. Cone, 86 Wis. 498, 57 N. W. 50; Walls v. State, 32 Ark. 565; People v. Beevers, 99 Cal. 286, 33 Pac. 844.

In some cases of voidable marriage, the marriage can only be avoided by a decree of nullity, and a second marriage, without first obtaining such a decree, is bigamous. See the cases above cited. But in other cases, as in some jurisdictions, where the party is under the age of consent, the marriage may be effectually avoided by the act of the party in disaffirming and repudiating it, without any decree of nullity, and, in such a case, a marriage by either party after such disaffirmance is not bigamous. Shafher v. State, 20 Ohio, 1; People

v. Slack, 15 Mich. 193.

a general rule, for the purpose of a prosecution for bigamy, a prior marriage which was valid in the place where it was contracted is valid everywhere, and a marriage which was void in the place where it was contracted is void everywhere, for the validity of a marriage is governed by the lex loci contractus.397

(e) Divorce or Annulment of Prior Marriage.-By the express terms of most of the statutes, and even in the absence of an express proviso, a person who has been married does not commit bigamy in marrying again after a valid divorce from the bonds of the prior marriage, or after a decree of nullity,398 unless, as is the case in some states, he is prohibited from marrying again, and the second marriage is in the same jurisdiction.399 This does not apply to a divorce from bed and board only, or a mere separation, nor does it apply where the divorce is granted after the second marriage,400 or where the decree of divorce is void for want of jurisdiction.401

(f) The Criminal Intent.-The statutes do not require any specific criminal intent in bigamy, but all that is necessary is that a party shall intentionally marry again when he knows that he is already legally married to another person. 402 Wheth

397 State v. Ross, 76 N. C. 242, 22 Am. Rep. 678; Bird v. Com., 21 Grat. (Va.) 800; State v. Clark, 54 N. H. 456; Weinberg v. State, 25 Wis. 370. There are some exceptions to this rule, as where parties leave a state to be married, in violation of its laws, etc. See State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683.

398 State v. Norman, 2 Dev. (N. C.) 222; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509.

399 Com. v. Richardson, 126 Mass. 34, 30 Am. Rep. 647; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509.

400 Baker v. People, 2 Hill (N. Y.) 325.

401 People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; Van Fossen

v. State, 37 Ohio St. 317, 41 Am. Rep. 507; State v. Armington, 25 Minn. 29.

402 Reynolds v. U. S., 98 U. S. 145, Beale's Cas. 179; Com. v. Nash, 7 Metc. (Mass.) 472, Beale's Cas. 304; Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2.

er religious belief or mistake of fact or of law is a good defense is elsewhere considered. 403

(9) Death or Absence of Former Spouse.-The death of the former husband or wife before the second marriage necessarily prevents the second marriage from being bigamous, and his or her absence for a long period may raise a presumption of death. In most jurisdictions, the statute expressly provides that it shall not apply to any person marrying again after his or her wife or husband has been continually absent for a specified period (the period varying in the different jurisdictions from two to seven years), without being known by such person to be living within such period." 404

460. Incest.-Incest is marriage or cohabitation, or sexual intercourse without marriage, between a man and woman who are related to each other within the degrees within which marriage is prohibited by law. 405 In most states it is punished by statute.

It seems that incest was not a crime at all at common law, but was left entirely to the ecclesiastical courts.406 In most states, however, if not in all, it is now punished by statute. These statutes are not precisely the same in all states, but they are substantially so. They punish any persons who, being within the degrees of consanguinity, or in some states of affinity also,407 within which marriages are declared to be incestuous and void, intermarry or commit adultery or fornication with each othTo constitute the offense the parties must be related

er, 407a

403 Ante, §§ 56, 64, 65, 70, 73.

404 As to the effect of absence for less than the period specified, and bona fide belief in death, see ante, §§ 56, 70.

405 See Cent. Dict. & Cyc. tit. "Incest;" 1 Bouv. Law Dict. tit. "Incest."

406 State v. Keesler, 78 N. C. 469. See 4 Bl. Comm. 64.

407 See Norton v. State, 106 Ind. 163, 6 N. E. 126; McGrew v. State, 13 Tex. App. 340; Stewart v. State, 39 Ohio St. 152.

407a State v. Herges, 55 Minn. 464, 57 N. W. 205; Nations v. State, 64 Ark. 467, 43 S. W. 396.