McCOMB, J., Dissenting. I dissent.
In the present case evidence that defendant in good faith believed at the time of his second marriage that prior thereto he had been divorced from the complaining witness was excluded. This in my view of the law was prejudicial error.
In my opinion the earlier rule announced in People v. Hartman, (1900) 130 Cal. 487 [62 Pac. 823], has been overruled In the Matter of Application of Ahart, (1916) 172 Cal. 762, 764 [159 Pac. 160], The case of People v. Hartman announced the rule that a second marriage under an erroneous assumption that the first marriage had been annulled or dissolved was not a defense to a charge of bigamy. This barbaric holding was in line with earlier cases inflicting the death penalty for grand larceny (People v. Tanner, (1852) 2 Cal. 257), and ignores entirely the provisions of section 20 of the Penal Code, which reads as follows:
“To constitute crime there must be unity of act and intent. In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”
Clearly, if defendant in good faith believed that a valid divorce had been obtained from his first wife prior to his second marriage there could not exist a union of act and intent, as required to constitute a crime by the provisions of section 20 of the Penal Code, supra.
In the Matter of the Application of Ahart, supra, Mr. Justice Henshaw, speaking for our Supreme Court, says at page 764:
“The ease comes quite clearly within the reasoning and principle of the English case of Regina v. Tolson, L. R. 23 Q. B. Div. 168 (1889), s. c., 40 Alb. L. J. 250, which case itself receives detailed consideration in 2 Lewis’ Sutherland’s Statutory Construction, section 527. The case was a criminal charge against a woman for a bigamous marriage. It had been held that one who marries a second time under an honest but an erroneous belief that a decree of divorce [629]which had been granted was valid is afforded no protection by the invalid decree, and that evidence of his good faith will be excluded. (2 Wharton on Criminal Evidence, 8th ed., sec. 1695a.) But in the later Tolson case the woman had married five years instead of seven years after her husband’s desertion of her, under the belief held in good faith that her husband was dead. The proposition considered was whether honest belief and good faith constituted a defense. It was conceded that the prisoner ‘ falls within the very words of the statute’. (Cave, J., said: ‘At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. ... So far as I am aware it has never been suggested that these exceptions do not equally apply to the case of statutory offenses unless they are excluded expressly or by necessary implication. ’ ”
It would seem from a reading of the foregoing language that our Supreme Court recognizes now that an honest belief in good faith that a prior marriage has been dissolved constitutes a defense to a charge of bigamy. This rule appears to be in accord with the modern enlightened view of criminal jurisprudence, which looks to the substance rather than to the form and seeks not to punish the innocent, and is well expressed by Mr. Justice Sedgwick of the Supreme Court of Nebraska, in Baker v. State, 86 Neb. 775 [126 N. W. 300, 303, 27 L. R. A. (N. S.) 1097], thus:
“ . . . But, as stated by Mr. Bishop, when a man is misled without his own fault or carelessness concerning facts, and while so misled, acts as he would be justified in doing were the facts as he believes them to be, he is legally innocent, the same as he is innocent morally. 1 Bishop’s Criminal Law, 503.
“The defendant should have been allowed to make such proof if he could, and, upon evidence tending to show such a condition, the question as to his information and good faith—that is, as to the sufficiency of his ground of belief— and whether in fact he did believe that the obligations of his former marriage had been removed by a legal divorce, should be submitted to the jury with proper instructions.”
[630]The rule just announced is recognized in the following cases: Squire v. State, 46 Ind. 459, State v. Sparacino, 164 La. 704 [114 So. 601], Adams v. State, 110 Tex. Crim. R. 20 [7 S. W. (2d) 528], Pruett v. State, 98 Tex. Crim. R. 325 [265 S. W. 575], Adams v. State, 94 Tex. Crim. R. 542 [252 S. W. 537], State v. Cain, 106 La. 708 [31 So. 300], Chapman v. State, 77 Tex. Crim. R. 591 [179 S. W. 570], White v. State, 157 Tenn. 446 [9 S. W. (2d) 702], Brown v. State, 115 Tex. Crim. R. 581 [28 S. W. (2d) 143], Geisselman v. Geisselman, 134 Md. 453 [107 Atl. 185], and Baker v. State, 79 Fla. 365 [84 So. 99].
For the foregoing reasons in my opinion the judgment should be reversed and a new trial ordered.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 9, 1939. Langdon, J., and Houser, J., voted for a hearing.