The Pub. Sts. e. 207, § 4, provide that “ whoever, having a former husband or wife living, marries another person,y shall be deemed guilty of polygamy. To convict a defendant of the offence, it must be alleged and proved that he had a wife living at the time of the second marriage. This is sufficiently alleged in the indictment, and the motion to quash was properly overruled.
The only exception to the evidence of the former marriage is, that there was a variance between the allegation and the proof. The indictment alleges a marriage on January 23, 1880, and the evidence was of a marriage on January 24, 1880. The allegation of the time of the marriage was not material, and it was not necessary to prove it as laid.
The defendant offered evidence to prove that he was married, in 1876, to a woman who was alive within a month of the former marriage alleged in the indictment; and asked that the ruling be given that, if the first wife was alive a month before said January 24, the presumption of law, in the absence of evidence to the contrary, was that she was alive on that day, and that the jury would be warranted in so finding. The court *299instructed the jury that there was no presumption that she was alive on that day, but it must be proved as a fact; that, if there was any presumption, it was that the marriage was legal. We think that the instructions given, with the refusal to give those asked for, were liable to mislead the jury. The fact that a person is alive at a certain time does afford some presumption that he is alive a month later, as it does that he was alive an hour or a year later. It is evidence tending to prove that fact, which in ordinary eases, in the absence of other evidence, would be deemed conclusive. Its weight, of course, would be affected by any circumstances affecting the probability of the continuance of life in particular cases, or rendering it probable that death had occurred; and, in this case, the fact of the defendant’s marriage is such a circumstance. But the question whether a person is alive at a certain time, whether a day, or a month, or a year, or any period less than seven years, after direct evidence that he was living, is for the jury, to be determined by the general presumption or probability of the continuance of life, modified by the circumstances of the particular case. See Hyde Park v. Canton, 130 Mass. 505; Kelly v. Drew, 12 Allen, 107; Rex v. Twyning, 2 B. & Ald. 386; Nepean v. Knight, 2 M. & W. 894; Lapsley v. Grierson, 1 H. L. Cas. 498, 505; Rex v. Harborne, 2 A. & E. 540; In re Phené’s trusts, L. R. 5 Ch. 139; Regina v. Lumley, L. R. 1 C. C. 196.
The jury were to judge of the strength of the presumption of the innocence of the defendant, as well as of the continuance of the life of his former wife, in view of all the circumstances affecting them. The instructions of the court were not merely that there was no presumption of law, and that the fact was for the jury to find upon the evidence, but were in effect a ruling that the presumption of innocence destroyed the presumption of the continuance of life, so that the fact that the first wife was alive a month before the second marriage was' not to be considered as evidence that she was living at the time of that marriage. While leaving the question with the jury, the effect of the instructions was to withdraw from their consideration the competent and apparently plenary evidence upon which they might determine it.
JExeeptions sustained.