Bennett v. State

Citations

• 100 Miss. 684
• 56 So. 777

Syllabus

<p>1. Bigamy. Evidence. Presumptions. Burden of proof. Indictment. Code 1906, sections 1051, 1052.</p> <p>Where a defendant was indicted for bigamy under Code of 1906, section 1051, which provides that “every person having a husband or wife living, who shall marry again, except in the cases hereinafter named, shall be guilty of bigamy,” the burden of proof was on accused to prove that his second marriage was within the exceptions named in Code 1906, section 1052, and the state was not required to introduce any evidence to show that the first marriage had not been dissolved, in order to make out a prima fade case against the defendant.</p> <p>2. Same.</p> <p>Where the evidence in such case shows beyond a reasonable doubt the first and second marriages and further shows that at the time of the second marriage the first wife of accused was living, the proof of these facts made out the case on the part of the prosecution.</p> <p>3. Bigamy. Evidence. Burden of proof.</p> <p>While it is the well-established rule in civil cases that, in attacking the validity of a marriage ceremony on the' ground of a former marriage, the burden of proof is upon the attacking party to show that there was no divorce from the first wife, it is equally well established that this rule does not apply in prosecutions for bigamy.</p> <p>4. Ihdictment. Statutory exceptions.</p> <p>Where the exception is so engrafted in the enacting clause of the statute that the offense cannot be described without meeting and negativing the exception, it must always be set out in the indictment, but where the exception is contained in some other statute, or is clearly separable from the offense, and the crime may be described without reference to the exception, then the latter is a matter of defense and need not be mentioned in the indictment.</p> <p>5. Criminal Law. Burden of proof. Presumptions.</p> <p>While it is the universal rule of evidence that every. person is presumed innocent until proven g.uilty, this p