I dissent.
The defendant was charged by information with the violation of section 281 of the Penal Code, a felony, in that on March 6, 1953, in San Diego County, he married Stelma G. Roberts, having a lawful wife, Peggy Vogel, then living. He was found guilty as charged. Imposition of sentence was suspended and probation was granted on condition that he spend four months in the adult detention facility in San Diego; that he support his children in accordance with a support agreement; that he should not leave the State of California; that within one year he “absolve” a marriage contract made by him with a Mrs. Harrington on February 15, 1954, in Tijuana, Mexico.
The prosecution proved the successive marriages of the defendant, to Peggy in 1944 and to Stelma in 1953. Peggy testified that she had not obtained a divorce from the defendant and that she had not received any notice indicating that he was seeking a divorce from her. In the absence of conflicting evidence this would be a showing sufficient to support a conviction for bigamy. The defendant conceded that he had not obtained a divorce from Peggy.
Bigamy is a statutory crime, defined in section 281 of the Penal Code, as follows: “Every person having a husband or wife living, who marries any other person, except in the cases specified in the next section, is guilty of bigamy.” The exceptions contained in section 282 are as follows:
“The last section does not extend,-
*807“1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living; nor
“2. To any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court.”
While the Legislature has provided a condition and a term of years after which a person may in good faith reasonably conclude that an absent spouse is dead, it has provided no such condition or term for concluding that an absent spouse has procured a divorce. The Legislature has not, either expressly or by reasonable implication, made a mere belief in the existence of a prior divorce a defense to a bigamy prosecution.
The defendant’s contention that he had married Stelma honestly believing that Peggy had theretofore divorced him was properly rejected. “It is a familiar rule, that to constitute a crime there must be a union of act and intent; but our code provides that the word ‘wilfully,’ when applied to the intent with which an act is done or omitted implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (People v. O’Brien, 96 Cal. 171, 176 [31 P. 45]; People v. Hartman, 130 Cal. 487, 490 [62 P. 823].) It was said in Matter of Ahart, 172 Cal. 762 at page 764 [159 P. 160]: “[S]ome acts [are] made crimes by the very terms of the law where the fraudulent or wicked intent is conclusively presumed from the commission of the act itself or where the act is denounced as criminal without regard to the facinorous intent.” The act of bigamy involves moral turpitude on the part of the bigamist. It also creates a serious mischief to society which the law seeks to prevent by penal sanctions.
The opinion refers to the comment of the code commissioners that the opinion in People v. Harris, 29 Cal. 678, 679, is a correct and authoritative exposition of section 20 of the Penal Code. It was there held that a defendant may introduce evidence to show that he was intoxicated at the time he committed the act complained of (voting twice at the same election), not as an excuse for the crime but to enable the jury to determine whether he was incapable of knowing what he was doing by reason of intoxication. That rule has *808no application to a charge of bigamy where the defendant voluntarily and consciously has entered into a second marriage knowing that his first spouse is alive. A specific intent to commit the crime of bigamy is not required by statute expressly nor by reasonable interpretation. The validity of marriages is of sufficient social importance to uphold the Legislature’s purpose to provide that where the specific statutory exceptions do not apply a person remarries at his peril. Any change in this regard should be made by the Legislature.
This court holds that the evidence rejected by the trial court was admissible on the issue whether facts existed which left the defendant free to remarry. I cannot agree with this conclusion. The defendant conceded that he could offer no direct evidence of a divorce. As circumstantial evidence he offered the following: a purported declaration by Peggy in 1950 that she was going to divorce him in a jurisdiction unknown to him; a driver’s license issued to Peggy in her maiden name in 1951 in Louisiana, and testimony of a Mr. and Mrs. Lucas tending to show cohabitation between Peggy and Earl Heck in 1952.
Defendant offered to prove Peggy’s 1950 declaration on the theory that it was admissible under the Hillmon doctrine as evidence that she had later obtained a divorce. (Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 [12 S.Ct. 909, 36 L.Ed 706].) He also cites People v. Alcalde, 24 Cal.2d 177 [148 P.2d 627], People v. Silver, 16 Cal.2d 714 [108 P.2d 4], and People v. Chenault, 74 Cal.App.2d 487 [169 P.2d 29], in support of his position. Declarations of intent have generally been held admissible to prove a completed act only where the declarant is dead or otherwise unavailable (People v. Alcalde, 24 Cal.2d 177, 185-188 (supra); People v. Weatherford, 27 Cal.2d 401, 420-423 [164 P.2d 753]) or where they fall within other exceptions to the hearsay rule. (People v. Silver, supra, 16 Cal.2d 714; People v. Chenault, supra, 74 Cal.App.2d 487; People v. Fong Sing, 38 Cal.App. 253 [175 P. 911].) This declaration is not within those exceptions.
In those jurisdictions where an honest but erroneous belief, reasonably entertained, that a valid divorce has been granted as to a prior marriage constitutes a defense to a prosecution for bigamy, it is required that a bona fide attempt be made to ascertain the facts. (Le Sueur v. State (1911), 176 Ind. 448 [95 N.E. 239]; Robinson v. State (1909), 6 Ga.App. 696 [65 S.E. 792]; Squire v. State (1874), 46 Ind. 459; Baker *809v. State (1910), 86 Neb. 775 [126 N.W. 300, 27 L.R.A. N.S. 1097]; see also Gillum, v. State (1941), 141 Tex.Crim.Rep. 162 [147 S.W.2d 778]; White v. State (1928), 157 Tenn. 446 [9 S.W.2d 702, 704]; 10 C.J.S. 367-368; 57 A.L.R. 786.) A mere belief, without a further showing of diligent inquiry and investigation is clearly insufficient.
The fact that a driver’s license was issued to Peggy under her maiden name would not have furnished proof of divorce. This license was obtained during the time when she was receiving allotment checks as the defendant’s wife. In order to obtain a default divorce during the time he was in military service she was required by law (Soldiers’ and Sailors’ Civil Relief Act of 1940, 54 Stats. 1180, ch. 888, § 200) to execute an affidavit that her husband was in military service. The presumption is that she obeyed the law. (Code Civ. Proe. § 1963, subd. 33.)
Nor was the testimony of Mr. and Mrs. Lucas admissible as proof of a divorce. The defendant contends that their evidence would have established a marriage by cohabitation and repute from which a presumption of validity would arise. (Code Civ. Proe. § 1963, subd. 30.) The presumption in favor of the legality of a marriage does not arise in favor of a marriage proved solely by cohabitation and repute. In view of the statutory requirement of solemnization it arises only in favor of a marriage regularly solemnized. (McKibbin v. McKibbin, 139 Cal. 448 [73 P. 143]; Wilcox v. Wilcox, 171 Cal. 770 [155 P. 95]; Estate of Hughson, 173 Cal. 448 [160 P. 548]; see Estate of Gill, 23 Cal.App.2d 212 [72 P.2d 771].) Moreover the presumption of validity of a ceremonial marriage is applied only in civil eases. The authorities are in general agreement that it may not be relied upon by a defendant in a bigamy prosecution. (Fletcher v. State, 169 Ind. 77 [81 N.E. 1083, 124 Am.St.Rep. 219]; 7 Am.Jur. p. 769, note 11.5; anno. 14 A.L.R.2d 34; 34 A.L.R. 464, 491.)
Section 4% of article VI of the Constitution of this state enjoins upon the court the duty not to reverse a judgment or an order denying a motion for a new trial on account of an improper “rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, . . . the error complained of has resulted in a miscarriage of justice.”
The rejected evidence was not competent to prove that Peggy had obtained a divorce. Even if the rejection of that *810evidence was error no prejudice resulted. The defendant received a fair trial. The jury was fully and fairly instructed and the proof of guilt of violation of the statute was without substantial conflict.
I would affirm the judgment and order.
Respondent’s petition for a rehearing was denied July 24, 1956. Shenk, J., was of the opinion that the petition should be granted.