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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert S. VOGEL, also known as Robert S. Neilsen, Defendant and Appellant.*

Cr. 1028.

Decided: July 11, 1955

Buttermore & Lightner, by Wesley B. Buttermore, Jr., San Diego, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInermy, Deputy Atty. Gen., for respondent.

A jury convicted defendant of the charge of bigamy. The claim is that he married one Stelma Hayes, under the name of Stelma Roberts, at a time when he already had a lawful wife living, i. e., Peggy Vogel, who married defendant in 1944, in New Orleans, Louisiana, while defendant was in the military service. Apparently some form of second marriage was performed in the Catholic church on October 17, 1947, between the same parties. After the first marriage defendant left for overseas. After six months absence he returned and lived with Peggy as her husband in both California and New Orleans. He reported again for active duty in 1950, in St. Louis, Missouri, and after his discharge he moved to California in 1952. Peggy did not come with him. Between 1950 and 1951, the parties were not in contact with one another, but Peggy received allotment checks from the Government as defendant's wife. In April, 1952, Peggy was injured, and defendant drove to St. Louis, picked her up, and took her to New Orleans and lived with her until August 2nd, when he left her again to come to California. He called her on the telephone in November, 1952, and on January 19, 1953, wrote a most pleading letter endeavoring to effect a reconciliation, and implying that they were still married. Defendant married Stelma Hayes on March 6, 1953, in San Diego. Defendant intimates that the letter written to his former wife was not delivered to her but was later found in defendant's belongings by Stelma. Defendant and Stelma lived together about two weeks and then she left him. On June 30th she obtained a divorce from him. She is the complaining witness in this case.

On February 15, 1954, defendant secured a ‘proxy marriage’ to one Mildred Harrington, in Tijuana, Mexico, and gave as his name ‘Robert Neilsen’. She testified that no ceremony was performed. Both parties knew he was not divorced from Stelma at the time, and Mildred considered this ‘more like an engagement’.

As a defense, defendant admitted his marriages to Peggy and Stelma, and claimed Peggy had legally divorced him, but he could not say when or where this claimed divorce took place. He testified his marriage to Peggy was basically an unhappy one and that in 1950, Peggy told him she was going to secure a divorce from him but that she was going to do it in such a manner as to prevent him from knowing about it so he could not contest her right to the custody of the children. Peggy denied making such a statement. Defendant said he took Peggy to St. Louis in 1950, and went back into the service, and from that time until May, 1952, when he learned of her accident, he neither saw nor heard from her despite repeated efforts by him to communicate with her; that he went to St. Louis from San Diego, where he was working, and drove her to New Orleans, lived with her a few months, and then came back to California. He admitted he never secured a divorce from her, but claimed that Peggy was now married to one Heck, but that he could not prove this as to date or place. He admitted he was sending her the allotment as his lawful wife in 1950–51, although he thought she was obtaining a divorce at that time.

A motion for new trial was denied. Judgment was not pronounced. Defendant was granted probation for ten years upon certain conditions.

The main contention raised on this appeal is that the trial court erred in refusing to admit certain evidence proffered by defendant pertaining to the martial status between Peggy and defendant at the time of defendant's second marriage. Peggy, while testifying for the prosecution, stated she had never been divorced from defendant, and related considerable testimony as bearing on this claim and to meet the burden imposed on the prosection to show that defendant's second marriage took place ‘during perdurance of that status'. People v. LaMarr, 20 Cal.2d 705, 709, 128 P.2d 345, 347; People v. O'Neal, 85 Cal.App.2d 226, 229, 192 P.2d 833; People v. Huntley, 93 Cal.App. 504, 506, 269 P. 750; Commonwealth v. McGrath, 140 Mass. 296, 297, 6 N.E. 515.

It appears from the authorities that there are three requisites to the establishment of the offense: (1) The alleged prior marriage must have been in existence as a matter of law, or in legal existence. (2) The prior spouse must have been alive at the time of the alleged bigamous marriage. (3) The previous marriage must not have been dissolved or annulled prior to the defendant's remarriage. Certain disputable presumptions have been held sufficient to prove a fact in criminal proceedings. Freeman v. Superior Court, etc., 44 Cal.2d 533, 282 P.2d 857. Where a former marriage is proved in a bigamy case, there is a rebuttable presumption of its validity. Whether there is a presumption in a criminal case that the marriage status continues to exist thereafter, in view of the conflicting presumption of innocence, may be questioned. 8 Cal.Jur.2d p. 313, sec. 27. It is there said, at page 314:

‘As a matter of abstract logic, the preumption of innocence would require the prosecution to make full proof of the existence of both marriages, including proof of the fact that the prior or legitimate marriage, relied upon in the charge, was not dissolved either by the death of one of the spouses or by an annulment or divorce prior to the defendant's remarriage. While this is the law with regard to the proof that the prior spouse was alive, it is established that in criminal bigamy cases the prosecution need not prove the negative fact that the prior or legitimate marriage was not judicially dissolved or annulled before the defendant's remarriage. Any such dissolution or annulment must be raised as an affirmative defense and proved by the defendant.’

The purpose of this rule is well stated in People v. Velasquez, 70 Cal.App. 362, 367, 233 P. 359; and People v. T. Wah Hing, 47 Cal.App. 327, 190 P. 662. Under the circumstances of this case, as between the second alleged wife and defendant, the burden was upon the defendant to show that the first marriage had been dissolved. Section 282 Penal Code; 8 Cal.Jur.2d p. 292, sec. 12; 8 Cal.Jur.2d p. 313–314, sec. 27.

Defendant raises some question as to the extent of the burden of proof that rests upon a defendant under section 282 of the Penal Code, i. e., whether defendant was called upon to prove the required facts by a preponderance of the evidence or whether there is imposed upon him the duty of going forward with evidence of such facts sufficient to raise a reasonable doubt in the minds of the jury as to the existence of these facts, citing People v. Deloney, 41 Cal.2d 832, 264 P.2d 532, a murder case where section 1105 of the Penal Code was being interpreted. The court said there that as to the burden being on the defendant to show mitigation, it was not the burden of persuasion but merely a duty of going forward with evidence of mitigating circumstances. See, also, People v. Fitzgerald, 14 Cal.App.2d 180, 195, 58 P.2d 718. Defendant in the instant case offered an instruction to this effect which was refused. Objection is made thereto. The court did read sections 281 and 282 of the Penal Code and instructed the jury in the general language of CALJIC No. 560 (modified) to the effect that:

‘To prove a charge of bigamy, the prosecution must prove these facts:

‘1. That the accused was twice married and that the two marriages were to different persons.

‘2. That the wife of the first marriage was alive when the second marriage took place.

‘3. That the first marriage was still in force and effect when the second one was consummated. * * *

‘5. * * * that if the second marriage was contracted under an erroneous assumption or belief by the accused that the first marriage was void or had been annulled or dissolved * * * that fact alone is not a defense to the charge.’ That

‘It is not a defense to a charge of bigamy that the defendant believed that the alleged former marriage had been annulled, dissolved, terminated by death or otherwise, if the evidence shows that contrary to his belief such a marriage was in force and effect at the time he entered into a later and bigamous marriage.

‘The only intent required by law as an element of the crime of bigamy is an intent to enter into the two marriages, the second of which is bigamous under the definition of the crime of bigamy previously stated to you.’

The court then instructed the jury that there had been no evidence produced showing that the first marriage had been dissolved as set forth in subdivision 2 of section 282 of the Penal Code, and that accordingly that subdivision did not apply.

As far as the record indicates, there is no evidence of its dissolution. The prosecution offered no instruction and none was given indicating that the burden of proof was upon the defendant to prove any of the exceptions indicated. A general instruction on reasonable doubt was given to the effect that the defendant is presumed to be innocent until proved guilty beyond a reasonable doubt, and if not he is entitled to acquittal. Since there was no competent evidence that defendant's first marriage had been previously dissolved, and since the trial judge, in effect, either rightfully or wrongfully, told the jury that burden of proof was on the prosecution to show that the first marriage was in force and effect when the second one was consummated, and refrained from instructing the jury that any burden rested on the defendant to prove anything, the defendant cannot be heard to complain because the court refused to instruct the jury as indicated in defendant's proffered instruction in respect to the burden of proof imposed upon him to prove the exceptions. The exceptions were neither proved by him nor by the prosecution.

The question then arises as to the correctness of the court's ruling on the proffered testimony which defendant claimed did bear on the question as to whether or not his first marriage had been dissolved. Two witnesses, husband and wife, who maintained an apartment house in St. Louis, were produced by defendant. The record shows that if they had been permitted to testify they would have said that between January and April, 1952, Peggy lived with one Earl Heck in one of their apartments as Mr. and Mrs. Heck, and they held themselves out as husband and wife, and that in April, Peggy had a severe automobile accident and was admitted to a hospital under the name of Mrs. Heck. Further proof was offered that Peggy obtained a driver's license in her maiden name in 1951. It is the contention of the defendant that this evidence, together with the allowable presumptions under section 1963 of the Code of Civil Procedure, showed that they were married and that accordingly it must be presumed that Peggy did not violate the law, and accordingly it must be presumed she secured a divorce from the defendant. It was also offered on the theory of impeachment, as being contradictory to Peggy's testimony that she never used any other name during this period except Peggy Vogel. As to the driver's license, Peggy testified, without objection, that she did obtain it under her maiden name. The court refused the license in evidence. The evidence of this fact was before the jury and no prejudicial error resulted from the ruling of the trial court.

A more serious question arises as to the court's ruling with reference to the other proffered testimony. It does appear therefrom that Peggy did use another name in 1952, and held herself out as being Mrs. Heck. Of course this fact, even if admissible for impeachment purposes, would not, in and of itself, prove that her marriage to defendant had been dissolved. People v. Huntley, 93 Cal.App. 504, 269 P. 750; People v. Van Wie, 72 Cal.App.2d 227, 164 P.2d 290. There is no showing that defendant had any knowledge of or relied upon these facts at the time he remarried. The evidence conclusively shows that he left her and came to California in 1952. He knew where she was living with her children at that time. In fact when she was injured he returned to her, took her from the hospital to her parents' home in New Orleans, and they lived together as husband and wife for several months. Had defendant believed she was divorced at that time it would have been a most natural and opportune occasion to inquire into that fact. The letter he wrote thereafter, on January 19, 1953, which was properly received in evidence, clearly indicates he did not believe she was then divorced from him. Even had defendant known of these facts, in this jurisdiction, contrary to some jurisdictions, good faith or a mistaken belief regarding the existence of a previous marriage does not relieve one of, and is not a good defense to, criminal responsibility for a bigamous marriage. People v. Kelly, 32 Cal.App.2d 624, 90 P.2d 605; 27 Cal.Law Review 746; 8 Cal.Jur.2d 287, sec. 11. Our research indicates that the proffered evidence, even if true, would not be a defense to the charge. It was said in 10 C.J.S., Bigamy, § 7–e, page 368, under recognized defenses to such charges, that ‘It is no defense * * * that at the time a man contracted a second marriage his first wife had deserted him and gone to live with another man’; or ‘that the first wife of accused had also contracted a bigamous marriage with another man * * *.’, citing United States v. Garoiran, 17 Philippine 404; and Tanner v. State, 116 Ark. 452, 173 S.W. 200. See also People v. Kelly, supra.

Under this principle the trial court was justified in its ruling. Although the presumptions relied upon by defendant in the instant case were not discussed in those cases, it is a well known principle of law that presumptions or inferences may not be based on other presumptions or inferences to prove a fact. Walsh v. American Trust Company, 7 Cal.App.2d 654, 659, 47 P.2d 323; 21 West's California Digest, Evidence, 54, page 116. Impeachment on immaterial facts is not allowable. People v. Ansite, 110 Cal.App.2d 38, 40, 241 P.2d 1036; People v. Pollock, 31 Cal.App.2d 747, 89 P.2d 128.

Defendant proposed an instruction to the effect that a divorce could be obtained by service by publication and without the party divorced ever knowing about it. It was marked ‘Refused as is'. There is no competent evidence in the instant case that such a procedure was followed, and accordingly there was no requirement that such an abstract statement of the law be given. People v. Talbott, 65 Cal.App.2d 654, 151 P.2d 317; People v. Shannon, 28 Cal.App.2d 677, 680, 83 P.2d 302; Penal Code, § 1093, subd. 6.

Defendant complains because the court received evidence, over objection, of some ‘Tijuana transaction’ involving defendant and a Mrs. Harrington. The full particulars of this transaction are not reported. The trial judge carefully protected the witness's right to refuse to testify in reference to it, and she exercised that right. Apparently this evidence was admitted upon the theory that it bore on the intent of the defendant in relation to his claimed bigamous marriage. There is some authority for it. People v. Jacobs, 11 Cal.App.2d 1, 14, 52 P.2d 945; People v. Burke, 43 Cal.App.2d 316, 110 P.2d 685. However, the intent involved in a charge of bigamy in this state is more or less limited to the intent to do the act of contracting the bigamous marriage, and not the intent to violate the law. People v. Hartman, 130 Cal. 487, 62 P. 823; 8 Cal.Jur.2d 287, sec. 11. After the jury returned for further instructions, apparently the trial judge considered that this evidence had been erroneously admitted or that the jury was not adequately informed of the purpose for which it was received, and ordered the jury to disregard it. This admonition came at a late hour since counsel for the People, in his argument to the jury, dwelt somewhat on this evidence in his appraisal of defendant and his actions. Since this evidence did not bear on the real question involved, i. e., whether defendant's previous marriage had been legally dissolved, no prejudicial error could be claimed. People v. McCalla, 63 Cal.App. 783, 797, 220 P. 436.

Complaint is made of the ruling of the trial court admitting, over objection, evidence of a purported second marriage by defendant to Peggy in the Catholic Church. It apparently was admitted, in the first instance in chief, as further evidence of defendant's first marriage to defendant, and no complaint could be made in this respect. However, before the trial was over, this evidence furnished ground for unauthorized argument to and by the jury as bolstering Peggy's testimony that she had not secured a divorce from defendant because of her religious belief. The trial court should have limited the argument to the purpose for which this evidence was admitted. However, it does not appear that prejudicial error resulted. Art. VI, § 4 1/2 Const.

The last objection is that the court inflicted arbitrary and unreasonable terms in granting defendant probation. The condition that he serve a portion of that period in the county jail and support his minor children and not leave the State of California is authorized by Section 1203.1 of the Penal Code. The condition that defendant ‘absolve’ his purported marriage with Mildred Harrington within one year is not authorized by that section, particularly where it appears that no ceremony was performed, and if performed a proceeding to annul it by the defendant might necessarily contain an admission of fact which would subject him to a further prosecution for bigamy. 5th Amendment to the Constitution of the United States. This condition should be and is stricken as one of the conditions of probation. The order denying a new trial was proper.

Orders affirmed as modified.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.

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