Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
By this appeal defendant challenges his conviction in the Essex County Court, Law Division, for the crime of bigamy. The facts are not in dispute.
Defendant married the complaining witness, Ann Nasco DeMeo, on November 16, 1941. On June 27, 1953 he married Josephine DePasque. Both marriages took place in New Jersey. In his application for the DePasque marriage license defendant stated that he had been married before and was legally free to marry again, having been divorced on February 18, 1953 by the First Civil Court, Ciudad Juarez, State of Chihuahua, Mexico.
Defendant was indicted for bigamy, N.J.S. 2 A:92-1, pleaded not guilty, and was tried. The State introduced in evidence the records of the two marriages. The first Mrs. DeMeo testified that her marriage to defendant had never been annulled and that she had never obtained a final judgment of divorce from any court. She had, however, received a copy of a final decree of divorce through the mail. The reference here was unquestionably to the mentioned Mexican divorce decree. In the course of his cross-examination of Mrs. DeMeo, defendant's attorney agreed he was not contending that she ever went to Mexico.
Defendant did not take the stand. The marriage license application mentioned above was marked in evidence. Defendant's attorney then offered in evidence an exemplified copy of the Mexican final divorce decree. The court sustained the State's objection to its admission after defendant's attorney said that he would not attempt to prove Mexican domicile because he had no such proof. The court acted on the authority of State v. Najjar , 1 N.J. Super. 208 (App. Div. 1949), affirmed 2 N.J. 208 (1949).
The jury found defendant guilty. Defendant's motion for a new trial was denied. The court thereafter sentenced him to the county penitentiary for a term of 12 months. Defendant immediately appealed.
The bigamy statute, N.J.S. 2 A:92-1, provides:
"Any person who, having a husband or wife living, marries another person, is guilty of bigamy and shall be punished as for a high misdemeanor.
This section shall not extend to:
C. A person who is or shall be, at the time of such marriage, divorced by the judgment or decree of any authority or court having cognizance thereof; * * *."
Defendant agrees that the State made out a prima facie case of bigamy, and that upon a showing of the two marriages the burden was on him to bring himself within one of the exceptions of the statute. State v. Reilly , 88 N.J.L. 104 (Sup. Ct. 1915), affirmed 89 N.J.L. 627 (E. & A. 1916); and see Plainfield v. Watson , 57 N.J.L. 525 (Sup. Ct. 1895).
Defendant's first contention is that the court erred in charging the jury on the question of his failure to take the stand in his own ...