When marriage constitutes an essential ingredient of a criminal offense, a marriage in fact, valid according to the laws of the country where contracted, must be proved by competent evidence, beyond reasonable doubt. In respect to the competency of the confessions of the defendant, as evidence of the first marriage, in a prosecution for bigamy, the authorities both in England and this country have differed. The weight,of authority is in support of the proposition, that, in the absence of local laws prescribing formalities and ceremonies to validate a marriage, the first marriage may be proved by the admissions of the accused -Miles v. U. States, 103 U. S. 304. A review of the authorities will not serve any useful purpose, as the rule that such confessions, when voluntary and properly identified, are admissible in evidence, on the same principle, and in like manner as other confessions, may be regarded as settled . in this State. In Langtrey v. State, 30 Ala. 536, it was held, *51that in prosecutions for bigamy, marriage may be proved by cohabitation and the confessions of the party ; and if the proof be full and satisfactory, it is not necessary to produce either the record of the marriage, or the testimony of a person who was present. And in Williams v. State, 54 Ala. 131, it was held, that as, by the common law, consent, followed by cohabitation, constitutes a valid marriage, the admission of a marriage in a State where the common law is presumed to exist, is the admission of a fact which may rest in parol only — -of which there is not necessarily higher evidence ; that such admissions are competent evidence of a marriage, and that the jury were to determine whether they involved an admission of its validity. Cohabitation and reputation alone may not be sufficient, as cohabitation frequently occurs without marriage, and the relation of husband and wife is sometimes assumed to avoid scandal and social ostracism. The presumption of marriage from cohabitation and reputation is more or less strong-according to the accompanying circumstances ; but confessions of marriage may be supplemented and strengthened by proof of cohabitation and reputation. The admissions of the defendant, of a first marriage in North Carolina, were admissible in evidence, there being no proof of any statutory regulations. No question is raised as to the voluntary character of the confessions; and the sufficiency of the confessions, and former admissions, to establish the fact and validity of the first marriage, was for the determination of the jury. If sufficient to satisfy them beyond a reasonable doubt, no other evidence is necessary.— Williams v. State, supra.
2. Proof that the first wife was living at the time of the second marriage is essential to conviction. Direct and positive evidence is not indispensable. The fact may be shown by circumstantial evidence. By the common law, the continuation of life, ordinarily, is presumed until death be shown. An exception, borrowed originally from the statutes in relation to bigamy, is the presumption of death after an absence of seven years, without having been heard from. By our statute, any person who did not know, at the time of the second marriage, that his or her former wife or husband was living, and whose former wife or husband had remained absent from him or her for the last five years preceding such second marriage, may lawfully marry a second time. — Code, § 4186. To constitute the statutory exception an available defense, continuous absence for the last preceding five years, and ignorance of the life or death of the former husband or wife, must concur. When the prosecution proves that the. former husband or wife was alive at a specified period before the second marriage, it is incumbent on the defendant to show either death, ora continuous absence for *52the period prescribed by the statute. Says Mr. Wharton : “ A party who marries within the time limited by the statute does so, so far as this exception is concerned, at his own risk. . . . TIence, on an indictment for bigamy, the death of the husband, if claimed to have occurred within seven years from his absence, must be proved as any other fact, aside from the legal presumption created by the exception to the statute.” — 2 Whar. Crim. Law, §§ 1704, 1705. And in Jones v. State, 67 Ala. 84, Brickell, O. J., construing our own statute, says : “ Whoever marries a second time, having a former husband or wife living, absent for a less period than five years, violates the statute, and is subject to punishment.”
It is not meant there are no cases, in which death will be presumed from unexplained absence for a less period than five years. Questions of conflicting presumptions may arise ; and the accompanying circumstances as to age, or health, or condition may be such, that the presumption of innocence will overcome the presumption of the continuance of life. A consideration of the circumstances, under which the one presumption will countervail, or overcome the other, is unnecessary, as no question of conflicting presumptions arises on the record. Absence, from which death is presumed, is absence abroad ; absence from the former place of abode, where nothing has been heard of the absent person by those who would naturally have heard of him, if alive. If the defendant left his wife in North Carolina, where they formerlyresided, and absented himself from that State, the presumption of her death can not arise by reason of his absence, or of his having heard nothing from her. To create such presumption, it is necessary to prove her absence abroad, without being heard from, during the statutory period, or under such circumstances as will authorize the presumption of death within a shorter period. There was no evidence that the wife had been absent abroad for any length of time ; and the confessions of defendant tended to show he had corresponded with her, to a short time before the second marriage — not exceeding a month. In such case, the wife being shown to be alive at a specified period before the second marriage, life is presumed to continue, and death, if claimed, must be proved as any other fact. A husband can not create absence by abandoning his family, and then invoke the presumption of innocence to destroy the presumptive proof of continuing life. On such facts, there can be no inference of death, available as a defense ; and the presumption of innocence only avails as in other criminal cases — that each essential ingredient of the offense must be proved beyond a reasonable doubt.
The charges numbered five, six and ten, requested by the defendant, were properly refused. They were tantamount to *53instructions, that positive evidence that the former wife was living at the time of the second marriage is necessary, and that ,the jury could not find such fact from proof that she was alive a short time prior thereto. The other charges requested assert propositions in conflict with the principles of this opinion. There is no error in the charges given at the request of the prosecution.
4. We are compelled, however, to reverse the judgment, because of a defect in the indictment. Both at common law, and under the Code, it is necessary to aver that the second marriage was unlawful. A person may lawfully marry a second time, having a former husband or wife living, if within the exceptions provided by section 4186. While it is not required of the prosecution to prove that the defendant is not included within either of the exceptions, it is necessary to negative the fact by an averment that he unlawfully married the second time. Otherwise an offense is not necessarily charged.
Reversed and remanded.