delivered the opinion of the court:
The vital question presented for our determination in this case is, was the alleged first marriage of plaintiff in error in Italy absolutely void? Counsel for the People contend that “the proof of a marriage in fact in another State, followed by cohabitation, is sufficient proof of the validity of the marriage, without evidence as to the law of the place where the marriage was celebrated,”—citing numerous authorities. It may be conceded that it is the general rule that if the celebration of the marriage is proved by witnesses who were present it is not necessary that any preliminary steps required by law should also be shown, as it will be presumed that the officiating person performed his duty and proceeded only when his authority was complete. (1 Bishop on Marriage and Divorce, sec. 450.) Still, when there is direct and positive proof as to the invalidity of the marriage this presumption cannot prevail. The only proof offered by the People in respect to the alleged first marriage was, that it was solemnized in a church by the officiating" clergyman according to the rites of such church, and it was shown that no other ceremony was performed. In the absence of proof as to the law of the kingdom of Italy relating to marriage such proof would be sufficient to establish the marriage. But in this case we are confronted with a number of provisions of the civil code of Italy requiring that the contracting parties be of a certain age, or else the consent of the parents; notice to be posted by a certain official, which could not be done without the consent of the parents duly obtained; and then a celebration in the town hall in a public manner before a certain civil official,— none of which provisions are shown to have been complied with. To this must be added the testimony of the Italian consul, who qualified as one learned in the Italian law, and testified, without objection, to the effect that a compliance with all these provisions was absolutely essential to a valid marriage in Italy, and that there was no other legal mode in which a marriage could be celebrated or contracted to make it valid in that kingdom, and that by no subsequent acts could it be ratified or validated, it being" wholly null and void.
It is urged by counsel for the People, that, notwithstanding the failure to observe such provisions, the marriage is still valid unless the law of the State where it was celebrated expressly makes it invalid for lack of such formalities, and it is claimed that the sections of the Italian code quoted do not show that such requirements are exclusive or essential. While this is in general true as to our marriage laws, still courts uniformly take notice of the construction given to foreign statutes by the foreign tribunals, and, to be informed of such construction, will receive the testimony of witnesses learned in the foreign law. (Hoes v. VanAlstyne, 20 Ill. 201.) The evidence of the Italian consul is uncontradicted as to the construction and effect given to these statutes in Italy. It is a general rule that a marriage invalid where it is celebrated is everywhere invalid. (1 Bishop on Marriage and Divorce, sec. 390.) The only exceptions to this rule relate to parties sojourning in a foreign country, who may, in certain cases, contract a valid marriage without celebrating it according to the local requirements. But the plaintiff in error and said Rosalie were both Italians, and, of course, do not come within such exceptions. In McDeed v. McDeed, 67 Ill. 545, it was said that the law of the State where the marriage takes place must control as to the validity of the marriage; and in Weinberg v. State, 25 Wis. 370, on an indictment for polygamy, where the first alleged marriage was in Prussia, and it appeared that by Prussian law a marriage, to be valid, must be entered into as a civil contract before a civil magistrate, it was held that proof of a religious ceremony will raise no presumption that a civil ceremony has been performed.
If this first marriage were treated as only voidable, and not void, both parties being at the time under the age prescribed by the laws of Italy, still, when they arrived at the age of consent, either of them would, at the common law, have had the lawful right to disaffirm it. Plaintiff in error did disaffirm it by ceasing to cohabit with the said Rosalie three months after the alleged marriage and by abandoning her, and by afterward marrying another woman, with whom, after he became of marriageable age, he has lived and cohabited as his wife. But the proof is uncontradicted that such marriages are absolutely void in Italy, and whatever may be the rule of law as to such marriages celebrated in this State, still, the foreign law and its construction being shown, we should follow that law, and especially so in favor of the innocence of the accused.
As the record shows there was no previous valid marriage the conviction cannot be sustained. The judgment is reversed and the cause remanded, with directions to discharge the accused.
Reversed and remanded.