Opinion
Rehearing Denied Oct. 31, 1927.
Hearing Granted by Supreme Court Nov. 28, 1927.
Appeal from Superior Court, Solano County; William T. O’Donnell, Judge.
Henry W. J. Ellis, also known as Henry J. Ellis, was charged by information with bigamy. The court dismissed the case, and the State appeals and applies for a writ of review. Order affirmed.
Hearing granted by Supreme Court; PRESTON, J., dissenting.
COUNSEL
U.S. Webb, Atty. Gen., J. Charles Jones, Deputy Atty. Gen., and Brantley W. Dobbins, Dist. Atty., of San Francisco, and Leo C. Dunnell, Deputy Dist. Atty., of Richmond, for the People.
Joseph M. Raines, of Fairfield, and Russell F. O’Hara, of Vallejo, for respondents.
OPINION
BURROUGHS, Justice pro tem.
In the first of the above-entitled proceedings the petitioner seeks to have annulled an order of the superior court of the county of Solano dismissing a certain criminal action wherein one Ellis is charged with the crime of bigamy. The second proceeding is an appeal from the same order.
From the record it appears that the trial court granted the motion because it was of the opinion that the information did not state a public offense under the laws of this state and that the defect could not be cured by an amendment.
The charging part of the information reads as follows:
"The said Henry W. J. Ellis, also known as Henry J. Ellis, on or about the 27th day of September, A.D. nineteen hundred and twenty-six, at Kansas City, state of Missouri, and before the filing of this information, did knowingly, willfully, and feloniously marry one Ida Lou Johnson, the said defendant being then and there the lawful husband of another person, to wit Alice Burton Ellis, then and there living, the marriage of said defendant and said Alice Burton Ellis not having been annulled, dissolved, and pronounced void by the judgment of any competent court, being then and there subsisting, as the defendant well knew, and the said Alice Burton Ellis not then and there being absent from the said defendant for five successive years without being known to defendant to be living; said defendant and said Ida Lou Johnson Ellis having on or about the 2d day of October, 1926, and ever since said date cohabited together as husband and wife, in Vallejo township, in the county of Solano, state of California."
To this information the defendant entered a plea of not guilty, and the cause was set for trial for the 26th day of April, 1927, and at that time the defendant made a motion that the action be dismissed and the defendant discharged from custody. The court granted the motion. It will be observed that the information alleges the marriage to have taken place in the state of Missouri, followed by a cohabitation of the parties in Solano county, Cal. The statute defining bigamy is section 281 of the Penal Code, which is entitled "Bigamy Defined," and reads as follows:
"Every person having a husband or wife living, who marries any other person, except in the cases specified in the next section, is guilty of bigamy."
Admittedly this case does not fall within any of the exceptions contained in the next section. If the foregoing were the only section bearing upon the subject-matter, we feel confident that no contention would be advanced that the trial court erred in its order of dismissal of the action, for it is too well settled to require the citation of authorities that the laws of California can have no extraterritorial force and that a crime committed in the state of Missouri could not be punished under the laws of the state of California. But it is claimed on behalf of the petitioner that section 1106 of the Penal Code must be read in conjunction with section 281, supra, and when so read the two sections constitute the crime of bigamy as alleged in the information. Section 1106 of said Code is entitled "Evidence on a Trial for Bigamy," and reads as follows:
"Upon a trial for bigamy, it is not necessary to prove either of the marriages by the register, certificate, or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases; and when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge."
It is further claimed that when the Penal Code of 1872 was enacted by the Legislature it was intended by the Legislature to re-enact or continue in existence the same definition of bigamy which had theretofore existed in our law. To a better understanding of the foregoing contention it is necessary to examine the law as it had previously existed. The Legislature of 1850, under the title of "Offenses Against Public Morality, Health, and Police" (Stat. 1850, p. 244, § 121), defined bigamy in the following language:
"Bigamy consists in having two wives or two husbands at one and the same time, knowing that the former husband or wife is still alive, *** and when such second marriage shall have taken place without this state, cohabitation in this state, after such second marriage shall be deemed the commission of the crime of bigamy."
The foregoing act was amended by the Legislature May 11, 1861 (St. 1861, p. 415), but did not alter the portion of the act above quoted. In 1872 the crime of bigamy was codified in section 281 of the Penal Code as it now stands and that portion of the Crimes and Punishment Act of 1850 and 1861, supra, relating to marriage without the state followed by cohabitation within this state, was omitted. Comparing the act of 1850 and the act of 1861 with section 281 of the Penal Code as it now stands, it appears that in both the former acts that when the second marriage was contracted without the state of California cohabitation in this state after such second marriage constituted the commission of the crime of bigamy, while in section 281 of the Penal Code all reference to a marriage contracted out of the state followed by cohabitation within this state is omitted. Section 1106 of the Penal Code provides that when the second marriage took place out of the state proof of that fact, accompanied by proof of cohabitation thereafter in this state, is sufficient to sustain the charge. The earlier statutes define a bigamous marriage out of the state followed by cohabitation within this state as constituting the crime of bigamy, while section 1106 merely states that it is sufficient to sustain the charge of bigamy, but does not undertake to make such facts constitute the crime. In our opinion there is a broad distinction between the earlier acts and section 281, even when read with section 1106, supra. In re Twing, 188 Cal. 261, 204 P. 1082, it was held that:
"Penal statutes will be construed to reach no further than their words; no person can be made subject to them by implication."
The Penal Code is divided into three parts. The title of part 1 is "Crimes and Punishments." It covers sections 26 to 681a of the Code. Therein the various crimes are defined and punishment provided for. Crimes are classified therein and each title deals with crimes of one class or of a similar nature. Therein the substantive law and definitions of crimes are found. The title to title 9 of part 1 is "Crimes Against the Person and Against Public Decency and Good Morals." This covers section 261 to 267 of the Code. Chapter 5 of said title 9 is entitled "Bigamy, Incest," etc. It includes sections 281 to 288 of the Penal Code, which includes the definition of the crime of bigamy, as hereinbefore set out. The title to part 2 of the Code is "Criminal Procedure." It includes sections 681 to 1570. Therein matters of procedure are dealt with, including commitments, trials, appeals, and special proceedings. Part 2 is divided into various titles. The title of title 7 is "Proceedings After the Commencement of the Trial and Before Judgment." The title of chapter 2 of title 7 is "The trial." Therein we find section 1106, supra, dealing with evidence on the trial of a charge of bigamy. In Kerr’s Cyc., Penal Code of 1920 (2d Ed.), the author says of section 1106 of the Penal Code:
"The latter portion of above section, relating to proof where second marriage takes place out of state, undoubtedly is, at most, rule of evidence, and cannot be deemed to extend scope of section 281, ante, defining bigamy in this state. Under section 281, ante, second marriage is gravamen of offense of bigamy. *** This being so, it would seem that whenever second marriage is contracted, offense is then complete, and is offense against state in which overt act is committed. As laws of state can have no extraterritorial force, provisions such as that contained in this section cannot alone warrant punishment of offense committed in another state."
Counsel for petitioner cites in support of his contention that the information states a public offense. People v. Martin, 188 Cal. 281, 205 P. 121, 21 A. L. R. 1399. In that case the defendant was charged by indictment in the superior court of San Diego county with the crime of bigamy which was alleged to have been committed in the county of Orange, but the case is not analogous to the one now before the court, for the reason that section 785 of the Penal Code provides that, when the offense of bigamy is committed in one county and the defendant is apprehended in another county, the jurisdiction is in either county, and in the Martin Case the defendant was apprehended in the county of San Diego.
Many other cases are cited by both parties, but a reading of section 281 of the Penal Code, which defines the crime of bigamy, cannot be extended by section 1106 of the Penal Code, especially in view of the fact that the latter section does not undertake to define the crime of bigamy, but merely establishes a rule of evidence. A further examination of the authorities cited would serve no useful purpose.
Some question has been raised as to the proper remedy, whether it should be by appeal or by writ of review, but, as in either case the order must be affirmed, that question becomes immaterial.
The order is affirmed.
We concur: FINCH, P. J.; PLUMMER, J.
People v. Ellis,