People v. Roessler

BROWN (Gerald), J.

Defendant appeals from a conviction of violating Penal Code section 281 (bigamy) after a jury trial.

On July 21, 1959, defendant married Precious Perritt. The parties separated in March 1960, and shortly thereafter they discussed the possibility of a Nevada divorce, which Precious agreed to obtain at some indefinite future date. Instead, Precious obtained an interlocutory decree of divorce in California April 25, I960; knowledge of the divorce was given to defendant the forepart of May I960; a copy of the decree was served on the defendant; the interlocutory decree provided that the parties would remain married until a final decree of divorce was entered not less than a year later. On May 22, 1960, defendant married Marsalene Graus. Precious received her final decree of divorce May 1, 1961. Thus defendant was married to two different women from May 22, 1960, to May 1,1961.

Defendant contends the court erred in instructing the jury respecting the elements of bigamy. The court stated the prosecution must prove, among other things, “That at the time of contracting the second marriage, the defendant did not

reasonably believe

himself to be free from the legal ties of the first marriage.” (Italics ours.)

Defendant asserts the instruction should have referred to a

bona fide

and

reasonable

belief, not simply a reasonable belief.

Defendant further contends that the following comment by the trial judge on the evidence erroneously omitted the term “bona fide,” in reference to the defendant’s belief:

“The gist of the defendant’s defense in this action is, therefore, that he

reasonably

believed himself free from the ties of the first marriage at the time he entered into the second. If you find that he was, that he did have such

reasonable

belief, or if he entertained a

reasonable

doubt as to whether he did or did not, it is your duty to vote ‘Not Guilty.’ If you feel that he did not so