As already stated, in reference to the present case when presented on a former bill of exceptions, (6 Allen, 591,) the mere fact that the defendant married Emeline B *25Carlton in ignorance of the fact that she had a husband living constitutes no legal defence to this indictment. The most favorable view in which this defence could be sustained was that stated in the former opinion, “ 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.”
But the case stated in this bill of exceptions is wanting in one of the essential facts stated as the foundation for a right to presume the death of the husband. It is only to the person who leaves his home or place of residence and is gone more than seven years and not heard of, that this presumption is applicable. Here the wife went away, and the husband for aught that appears remained at Lawrence, or in the vicinity. The facts show affirmatively that he was residing in Dracut in this commonwealth in 1859. Bracut was the place of residence of the parties for two years succeeding their marriage, and was the only place where they lived together, except in Lawrence, which is in its vicinity.
In the facts stated, we see no sufficient ground for any presumption of the death of the husband upon which the wife of Carlton or the defendant could properly have acted. The superior court very correctly marked the distinction, in the case where the wife leaves her husband and remains absent from him, in the ruling and instructions given to the jury.
The fact that the misconduct of the husband authorized the wife thus to leave him and continue absent, although it might justify her against all cause of complaint by the husband, and even warrant her obtaining a legal divorce for desertion, if continued for five years, under the provisions of our statute, does not affect the legal guilt of the defendant, however much these circumstances may avail him in mitigation of his punishment.
Exceptions overruled.