282. The last section does not extend 1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living; nor, 2. To any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent Court. NOTE.—Subd. 1.-What proof of the defendant's knowledge that the former husband or wife was living when the second marriage was contracted is proper depends upon the facts of each case.-Reg. vs. Ellis, 1 Fost. & F., p. 309. Where the prisoner was indicted for bigamy, and no evidence was given on either side as to the prisoner's knowledge that his wife was alive, but it was proved that they had separated by agreement in 1843, and that in 1857 the prisoner produced her at a trial in which he was interested; held, that it was for the jury to say whether there was an absence of knowledge on the part of the prisoner that his wife was alive in 1855, the date of the second marriage.— Reg. vs. Cross, 1 Fost. & F., p. 510. Upon a trial for bigamy, where it appeared that the first husband had been continually absent from the prisoner for the space of seven years next preceding the second marriage, the jury being asked to consider whether she knew her husband to be alive at the time of the second marriage, and if not, whether she had had the means of acquiring the knowledge, found that they had no evidence of her knowledge, but were of opinion that she had the means of acquiring knowledge if she had chosen to make use of them; held, that upon that finding the conviction could not be sustained, inasmuch as it left it uncertain whether, in fact, she had or had not the knowledge.— Reg. vs. Briggs, 7 Cox Crim. Cas., p. 175. Express proof that the former husband or wife was living is not always required, but strong presumption of continued life may suffice.-See Gorman vs. State, 23 Tex., p. 646. Subd. 2 is substantially part of Section 121 of the Crimes and Punishment Act, as amended.-Stats. 1861, p. 415. This and the preceding section are based on the statute referred to. Modifications have been made in the language. Exceptions Punishment of bigamy. Marrying a husband or wife of another. Incest. 283. (§ 121.) Bigamy is punishable by fine not exceeding two thousand dollars and by imprisonment in the State Prison not exceeding three years. NOTE.-Stats. 1861, p. 415, Sec. 1. For the crimes of seduction and adultery, see Acts of 1871-2, set out in note to Sec. 266, ante. 284. (§ 122.) Every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the provisions of this Chapter, is punishable by fine not less than two thousand dollars, or by imprisonment in the State Prison not exceeding three years. NOTE.-Stats. 1861, p. 415, Sec. 122, modified. This section as it existed applied only to unmarried persons, the idea being, doubtless, that a married person who knowingly marries the husband or wife of another is punishable for the higher offense of bigamy by reason of his or her own previous marriage. But to sustain a prosecution for bigamy the people must be prepared to prove the first marriage of the accused. A case might arise in which a married person contracting a marriage with a husband or wife of another might escape an indictment for bigamy for want of evidence of an earlier marriage, and yet, if indicted under Section 122, quoted supra, defeat the prosecution by proof of such earlier marriage. Therefore the word “unmarried" was omitted. It may be remarked that by Section 654, post, it is provided that where an act or omission is made punishable in different ways by different provisions of this Code, it may be punished under either of said provisions, but not under more than one. Therefore, under the above sections, a person supposed to be married, and charged with marrying the husband or wife of another, may be indicted either for bigamy under Section 281, or for the felony prohibited by Section 284, according as it may be easiest to prove the former marriage of the accused or that of the person with whom the accused has now intermarried. 285. (§ 123.) Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the State Prison not exceeding ten years. NOTE.-Incestuous marriages.-See Civil Code Cal., Vol. 1, p. 30, Sec. 59; see attempt to contract incestuous against 286. (§ 48.) Every person who is guilty of the Crime infamous crime against nature, committed with man- nature. kind or with any animal, is punishable by imprisonment in the State Prison not less than five years. 287. Any sexual penetration, however slight, is Penetrasufficient to complete the crime against nature. NOTE.-Crim. Prac. Act, Sec. 374. tion CHAPTER VI. VIOLATING SEPULTURE AND THE REMAINS OF THE DEAD. SECTION 290. Unlawful mutilation or removal of dead bodies. Not to apply to certain persons. 290. 291. Unlawful removal of dead body from grave for dissec tion, etc. 292. Who are charged with the duty of burial. 293. Punishment for omitting to bury. 294. Who are entitled to custody of a body. 295. Arresting or attaching a dead body. mutilation or removal of dead bodies. Every person who mutilates, disinters, or re- Unlawful moves from the place of sepulture the dead body of a human being without authority of law, is guilty of felony. But the provisions of this section do not apply to any person who removes the dead body of a relative or friend for reinterment. NOTE.-Stats. 1854, p. 20, Sec. 1. See Political Code, "Dissection," Secs. 3093-3095, and "Cemeteries and sepulture," Secs. 3105-3111. 291. Every person who removes any part of the dead body of a human being from any grave or other place where the same has been buried, or from any Not to apply to certain persons. Unlawful dead body removal of from grave for dissec tion, etc. Who are charged with the duty of burial. place where the same is deposited while awaiting burial, with intent to sell the same or to dissect it, without authority of law, or from malice or wantonness, is punishable by imprisonment in the State Prison not exceeding five years. NOTE. This section embraces the removal of a part only of the remains of a deceased person, and the removal of remains while yet unburied. In Reg. vs. Sharpe, 40 Eng. L. & Eq., p. 581, it appeared that the prisoner had, without leave, entered a burying ground, and without authority from the custodians, had disinterred a corpse, and removed it. The removal was conducted in a proper manner, the corpse was that of the prisoner's mother, and his motive for the removal was to bury her remains in a churchyard with the body of his father, then recently deceased. Held, that the disinterment was a misdemeanor. The mere fact that the defendant acted from praiseworthy motives, was no defense. Neither does the English law recognize the right of any one child to the corpse of its parent. It recognized no property in a corpse. Nor will relationship justify the taking of a corpse grave where it has been buried. The section in the text has regard to the motives from which the act is done, and leaves a disinterment to pass without criminal punishment, if the unworthy motives specified in the section are not proved to have actuated the defendant, and if there was nothing in the manner of performing it amounting to an offense under other provisions of the Code. away from the 292. The duty of burying the body of a deceased person devolves upon the persons hereinafter specified: 1. If the deceased was a married woman, the duty of burial devolves upon her husband; 2. If the deceased was not a married woman, but left any kindred, the duty of burial devolves upon the person or persons in the same degree nearest of kin to the deceased, being of adult age, and within this State, and possessed of sufficient means to defray the neces sary expenses; 3. If the deceased left no husband nor kindred answering the foregoing description, the duty of burial devolves upon the Coroner conducting an inquest upon Same. the body of the deceased, if any such inquest is held; if there is none, then upon the persons charged with the support of the poor in the locality in which the death occurs; 4. In case the person upon whom the duty of burial is cast by the foregoing provisions omits to make such burial within a reasonable time, the duty devolves upon the person next specified; and if all omit to act, it devolves upon the tenant; or if there is no tenant, upon the owner of the premises or master; or if there is no master, upon the owner of the vessel in which the death occurs or the body is found. 293. Every person upon whom the duty of making burial of the remains of a deceased person is imposed by law, who omits to perform that duty within a reasonable time, is guilty of a misdemeanor; and, in addition to the punishment prescribed therefor, is liable to pay to the person performing the duty in his stead treble the expenses incurred by the latter in making the burial, to be recovered in a civil action. 294. The person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it; except that in the case in which an inquest is required by law to be held upon a dead body by a Coroner, such Coroner is entitled to its custody until such inquest has been completed. 295. Every person who arrests or attaches any dead body of a human being, upon any debt or demand whatever, or detains or claims to detain it for any debt or demand, or upon any pretended lien or charge, is guilty of a misdemeanor. NOTE.-The four preceding sections are taken from the New York Penal Code (Secs. 352, 353, 354, 359) and were deemed necessary when such notices as the follow Punishomitting to ment for bury. Who are entitled to custody of a body. Arresting or attach ing a dead body. |