Defendant appeals from a judgment following a conviction of bigamy and from the denial of his motion for a new trial. The case was tried by the court without a jury.
The point upon which appellant asks us to reverse the judgment is that he was already legally married when he married the woman claimed in the information to be his legal wife, and that the evidence upon this point is conclusive.
[1] There is some indirect evidence in the case to the effect that appellant had been married five times, but only three marriages were proved. He married Marie Shay in 1923, Viola Kelly in 1930 and Pauline Gallagher in 1932, the last named being the marriage upon which the information herein is based. The arresting officer testified that appellant told him that he had been married twice before the marriage to Viola Kelly and that there had been an annulment as to one and a divorce as to the other. In appellant's direct testimony it is claimed that no divorce or annulment, so far as his knowledge goes, had ever affected his marriage *Page 183 to Marie Shay. On cross-examination, however, he testified: "Q. Now isn't it true that after your arrest in San Bernardino Lieutenant Ryan inquired of you about former marriages and asked you if you had ever been married to anyone before the time you were married to Viola Kelly, and that you told Lieutenant Ryan that you had been married twice before that, and that one of the marriages had been annulled and the other had been dissolved by divorce, or words to that effect? A. I did. Q. That is true? A. Yes." If this is true he was free to marry Viola Kelly.
There is much inconsistency to be found in appellant's testimony, but it would seem useless to notice it here specifically.
Judgment and order affirmed.
Craig, Acting P.J., and Archbald, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on September 29, 1933, and the following opinion then rendered thereon: