Dissenting. — This case comes up on a bill of exceptions. The evidence given in the court below is not brought up. Whenever, therefore, the lawfulness of proceeding upon the trial depends on the evidence given at the trial, the presumption is that the requisite evidence was given. The majority of the court think there were two instances of error on the trial: 1. In the charge of the court to the jury; and 2. In allowing evidence of repute in the family and community where the defendant resided, as to the nature of the relations of the •defendant with the woman in question, and whether they were regarded in the family and community as those of husband and wife.
On both of these points I am constrained to dissent.
First, as to error in the charge. The alleged ground of this is as follows: Evidence had been given, and the fact was not *566denied, that for years previous to the first day of June, 1886 (the beginning of the time alleged in the indictment as the beginning of the time covered by the unlawful cohabitation), the defendant, having a lawful wife still living, had publicly lived and cohabited with another woman, one Ehoda Dimmick, as his wife; that he had at least one child by her. She went by his name, and was in that community known and recognized as the defendant’s plural wife. It was stated by defendant in his own behalf, on the trial, that on or shortly prior to the first day of June, 1886, it was agreed between said defendant and Ehoda Dimmick that they would thenceforth live separate and apart. It was shown that the defendant still supported said Ehoda and her child as formerly, and that he was seen at her house. After the cause was summed up, the court charged the jury that “if from all the evidence you are satisfied beyond a reasonable doubt, that the defendant has cohabited with the woman in question at the time or any part of the time mentioned in the indictment, it will be your duty to find the defendant guilty; but if, on the other hand, you shall not believe from the evidence, beyond a reasonable doubt, that the defendant has so cohabited with said Ehoda Dimmick, then you will find a verdict of not guilty. In this case you cannot find the defendant guilty unless you find from the evidence that defendant has lived with his wife and with Ehoda Dim-mick, in the habit and repute of marriage, as to both of said women, between the first day of June, 1886, and the eighth day of June, 1888; and if you find that prior to June 1, 1886, they separated by agreement, and ceased their relations of husband and wife, and made the termination of those relations notorious and public, and wholly and publicly repudiated those relations, and have hot since lived together, or continued such marital relations in public or privately, and that he has only contributed property to her support, but not as to a wife, then this does not constitute such a cohabitation as is condemned by law, and it would then be your duty to find him not guilty. This change of relations must be real, and not merely colorable and unreal. It is not the object of the law to punish for acts of justice or benevolence. There is a wide distinction between such acts, and such as the law- prohibits. The example before the public *567and the influence of such acts are widely different. In the determination of this you will consider whether, under the facts as proved, the acts of the defendant have been such as to lead the public to believe that the relations of husband and wife still continued. If they have been such as to induce others to believe, and to induce the public to believe, that the marital relation still continued, then the acts of the defendant are unlawful.” A portion of this charge embodies a request of the defendant’s counsel. The part embodying the request is from the words, “in this ease the jury,” to and including the words, “find him not guilty.” The court declined to give as requested, except as modified at the places where those words occur, by inserting the words, “and made the termination of those relations notorious and public, and wholly and publicly repudiated those relations”; also, “or continued such marital relations in public or privately”; also, “but not as to a wife.”
It will be seen that the counsel for the defendant himself assumed, and the court assumed, as it was in fact proved that up to about June 1, 1886, the defendant had lived in the repute of matrimony with Rhoda Dimmiek; that on the strength of this alleged agreement with Rhoda, testified to by the defendant himself, and which nobody but he appears to have even suspected, he seeks to evade punishment. With the amendments was given á statement of their true intent and meaning. On any fair reading it only amounts to this: that as the public relations of the defendant and Rhoda up to June 1, 1886, had been those of husband and wife, those relations would be presumed so to continue until there was some change visible to others in their relations. How long that presumption would obtain is another question. But if it hold any considerable time after the 1st of June, 1886, it brings the ease within what those continuing relations were. This was competent as showing the repute in which he lived. It was competent in showing the nature of the acts proven, though not of itself sufficient to convict. Such is the rule of law applied in Utah, where most cohabitation cases have been tried, and also in Idaho. The bill of exceptions does not purport to bring up the evidence, except of the identical witnesses to whom the question of repute was put; and, because each of those witnesses did not from his *568own knowledge testify to sufficient (as is claimed) facts of social intercourse, the nature of which facts were in question, and however fully such facts may have been proven by other witnesses, the contention is that such evidence of repute was improper. The point made is practically that under no conditions is such evidence admissible.
Again, it must be said the offense charged is not bigamy or polygamy, and a marriage in fact was not in issue. But, the fact of having a legal wife' still living being admitted, the only question to which this evidence was directed was as to whether the defendant was also living in repute of marriage with Bhoda Dimmick. For the purpose of qualifying those acts of defendant, and showing the repute in which he was living, such evidence is competent. (1 Greenleaf on Evidence, secs. 101, 103, 107; Pettengill v. McGregor, 13 N. H. 179; Tarpley v Poage, 2 Tex. 139-149; 1 Bishop on Marriage and Divorce, secs. 438-440.) But to enforce this objection the counsel contends that the facts known to each witness must at least be sufficient to call for such qualifying evidence. This distinction between those identical witnesses and other witnesses in the ease is not well taken. All the facts proven must be taken together. (Scott v. Lloyd, 9 Pet. 460; Reenan v. Hayden, 39 Wis. 558-561.) The order denying a new trial should be affirmed.
Order reversed.