dissenting as to conclusion.
I have no fault to find with the law laid down in the opinion, but it seems to me that it is inapplicable to the facts in this case, and that the exclusion of the offered testimony was not prejudicial. The evidence shows that defendant was married in 1883, and lived with his wife for 25 years. She bore him 'six children, five of whom were living at the- time of the trial. The family home was in Ashtabula, Ohio. Baker and his wife had lived somewhat unhappily, and they -separated some time in the summer of 1908. In the latter part of September or the first of October, 1908, he left Ashtabula, where his wife and family were, and came to his brother’s home in Niobrara, Nebraska, where he remained until about the 20th of December, 1908. He testifies that while there he received a letter from his daughter Mrs. Knapp, that he burned up a lot of letters, and presumes that letter was amongst those he burned. He then offered to prove that he showed this letter to his brother .Frank, that it informed him that his wife had obtained a divorce, and that the information was believed by him and relied upon by him. The defense also offered to prove by Frank Baker that the defendantreceived such a letter, that he read it, that it contained information that defendant’s wife had *785obtained a divorce in Ashtabula. These offers were rejected and the evidence excluded.
He married again on January 11, a few days more than three months from the time he left Ohio. After his arrest he stated he liad been informed by a lawyer that his first marriage was not legal, and that it was unnecessary to procure a divorce. The testimony of this attorney was offered by him, and received, to the effect that he had told Baker the marriage laws of Ohio, as to the marriage of minors, had not been complied with at the time of the marriage; but he also testifies he told him that his wife was, at least, a common law wife, and that his advice was that, “to clear up the matter, the easiest way would be to get a divorce.”
The case stands thus: A man leaves his wife and family in Ohio, comes to Nebraska, and, in about three months from the time of leaving, marries again. His wife testifies that after he came west she wrote to him for money for the support of the family, and this is not disputed. Conceding that he had received the letter from his daughter, could this fact change the legal and necessary result of the undisputed facts? He knew that his wife was living in Ashtabula, and that the expenditure of a few cents would procure him information from the proper officer as to whether a divorce had been granted. The time was so short since h.e left his wife that he was not justified in blindly accepting such a statement, even if made. He made no attempt to ascertain the facts. The case is different from one where there was any care taken or any diligence used, or where there could be any well-grounded reason for such a belief. There can be no doubt that the defendant did not use due care, because the proof shows he used no care at all, and made no inquiry, and, under all the authorities, due care and due inquiry are essential to such a defense. It has been well said that “no man can be acquitted of the responsibility for a wrongful act, unless he employs the means at command tQ inform him*786self. Not employing such means, though he may be mistaken, he must bear the consequences of his negligence. If he relies on information obtained from others, he should have some just reason to believe that from them he could obtain information on which he may safely rely.” If the evidence had been received, it would not have been erroneous for the court to instruct the jury that, under the circumstances of the case, it did not constitute a defense. If such facts as those offered to be proved constitute a valid defense in a prosecution for bigamy, then a man may acquire a new family with impunity every 90 days if lie only testify that a relative within 90 days from' his departure from his wife and home wrote him a letter telling him that his wife had received a divorce.
I think that, under all the circumstances shown, the, court committed no error in excluding this testimony, because, even if established, it did not constitute a defense. Under all the facts proved, I think that the sentence is too severe and should be reduced, but a new trial should not be granted.