The court properly refused to rule that upon the mere showing that the defendant married the said Emeline B. Carlton and cohabited with her without any knowledge that she had a husband living, and believing that she had no husband living, the defendant could not be convicted of adultery, although she then had a legal husband in full life.
The objection urged in behalf of the defendant, that to make any act criminal there must be a criminal intent, will not screen the guilty party under such circumstances. Commonwealth v. Mash, 7 Met. 474.
This would dispose of the case, but for the facts, which were offered to be proved, that the husband had been absent from his wife for eleven years preceding the time when the acts complained of took place, and that his wife had not seen or heard of him during that period, and had no knowledge that he was alive.
It is a well settled rule of law that, upon a person’s leaving his home for temporary purposes of business or pleasure, and not being heard of or known to be living for the term of seven years, the presumption arises of his death. 2 Stark. Ev. (4th Amer. ed.) 458. Loring v. Steineman, 1 Met. 211. Although this is merely a presumption authorized by law, and may be controlled by evidence showing that the fact was otherwise, yet in reference to acts of other parties, and in deciding whether they are criminal, this presumption is allowed to have its proper effect. Thus in reference to the criminal intercourse alleged to have taken place between Mrs. Carlton and the defendant, supposing she had been indicted for polygamy, and the fact had appeared of the absence of her husband for eleven years, she not knowing him to be living during that time, this would constitute a legal defence to the criminal charge. Gen. Sts. c. 165, § 5; We think this statute, though not in terms applicable to an indictment for adultery, recognizes a rule that should operate as a legal defence to the charge of adultery, when the alleged criminal acts are the marrying and cohabiting with a woman whose husband had been absent more than seven years, and not known to the defendant to have been alive during that period.
*593The proper instructions to the jury in a casa like the present would be, that if it appeared that the husband had absented himself from his wife, and remained absent for the space of seven years together, a man who should, under the existence of such circumstances, and not knowing her husband to have been living within that time, in good faith and in the belief that she had no husband, intermarry with her and cohabit with her as his wife, would not by such acts be criminally punishable for adultery, although it should subsequently appear that the former husband was then living.
Exceptions sustained.