Johnson v. State , 60 Ark. 308 ( 1895 )

Bunn, C. J.,

i. sufficiency of indictment for bigamy, (after stating the facts.) The indict- # ment is not very artistically drawn, but we will treat it as sufficient to put the defendant on notice of the charge upon which he was to be tried, and therefore hold it sufficient.

2. competency of evidence. The objection of the defendant to the introduction in evidence of the record of the marriage of Maude Kimbrough to W. W. Johnson, and to the evidence of the cohabitation of defendant with her as her husband from about that time on, was properly overruled by the court; for, without deciding that cohabitation is sufficient to establish the fact of the marriage, it is admissible to identify the defendant with the person named in the marriage record. The testimony offered by defendant as to Maude Kimbrough’s former marriage to Price should have been admitted.

3. validity of Indian cotmThe main question .in the case is as to the legality of the first marriage of defendant to his cousin, Paralee Sivils, in the Indian Territory. Such a marriage between first cousins would be absolulely void in this State, and would have been at any time since the passage of the act of March 5, 1875, inhibiting the marriage of first cousins; and so any marriage between first cousins in the Indian Territory since May 2, 1890, as on that day a law of congress extended the Arkansas laws on the subject of marriage over the Indian Territory. But what was the law in the Indian Territory on the subject previously to that time does not appear in evidence. The circuit court evidently tried the case on the presumption that the common law prevailed in that country prior to the act of congress referred to above. It should not have indulged such a presumption, for none such arises in respect to the laws of the Indian Nation. Garner v. Wright, 52 Ark. 385, and authorities cited.

In the absence of proof of the laws and customs of the Indian Nation at the time of the marriage of defendant and Paralee Sivils, and such as were applicable to them, the defendant should not have been convicted. The judgment is therefore reversed, and remanded for further proceedings.