Spitzer

Defendant appeals from a judgment pronounced upon his conviction of the crime of bigamy.

The offense, as alleged in the information, was that he did, knowingly and unlawfully, marry one Marie Marjorie Sims, at which time he was the lawful husband of Edith C. Spitzer.

His chief defense is that he was never lawfully married to Edith C. Spitzer, as alleged in the information, the reason therefor being that at the time of the admitted marriage ceremony had with her he was the lawful husband of one Mary Truell Spitzer, to whom he had been married in the state of New York on July 26, 1905.

[1] It seems to be the law that if the first marriage alleged in an information charging the crime of bigamy be shown to have been void because of a previous valid existing marriage, the defendant cannot be convicted thereunder. (Commonwealth v. McGrath, 140 Mass. 297 [ 6 N. E. 515 ]; State v. Sherwood, 68 Vt. 414 [ 35 Atl. 352 ] ; People v. Mock Yick Gar, 14 Cal. App. 334 [ 111 Pac. 1039 ].) As said in Lane v. State, 82 Miss. 555 [ 34 South. 353 ], “the rule is thoroughly settled that one indicted for bigamy must be acquitted on that indictment if he can show that the first marriage alleged in the…