(dissenting). The basic question here is whether in a bigamy prosecution good faith reliance upon a judgment of divorce which in law is void is still a valid defense.
In State v. Najjar, 1 N. J. Super. 208 (App. Div. 1949), affirmed per curiam 2 N. J. 208 (1949), the court held that ignorance of the law in such a situation was no excuse and so long as the defendant knew all the facts and his marriage was in purported reliance upon a decree legally void and generally known to be worthless, the defendant was guilty.
The court cited and relied upon State v. Long, 5 Terry 251, 44 Del. 251, 59 A. 2d 545 (Del. Gen. Sess. 1948), as setting forth the general rule to that effect. Actually, State v. Long was reversed by the Delaware Supreme Court, sub nom. Long v. State, 5 Terry 262, 44 Del. 262, 65 A. 2d 489 (1949), on the very point for which it was cited. The reversal came after the opinion by the Appellate Division but before our decision of affirmance, although I doubt whether it was called to our attention.
I voted for affirmance in the Najjar case, supra, but further study and consideration bring me to the conclusion that I was in error.
A final judgment of divorce, even where the judgment is void and even though it is generally known to be worthless, unless this general knowledge is imputed or brought home to the defendant, should constitute a defense in a criminal action of bigamy. The defendant’s intent and the query as to whether or not he acted under a genuine mistake of law go to the very heart of our concept of criminal behavior and become part of the mens rea which is a fundamental in our criminal law. The crime of bigamy, like any other crime, at least those where the Legislature has not specifically excluded the element of criminal intent in defining the crime itself, requires a guilty mind and an intent to do wrong.
Hot only is this the law, but it seems to be an inseparable part of human nature and the foundation of fundamental fairness, as is reflected by the inquiry of the jury in the case at hand. After deliberating, they returned and asked:
*16“1. Could the jury return a verdict of not guilty if through inference it believes that the defendant firmly believed himself to be divorced at the time of his second marriage?
2. Should the jury consider the defendant’s intent to commit a crime?”
I think the court’s answer to the first question was fair and intelligent. Its answer to the second was an evasion and in conflict with the answer first given.
Because we have vigorously frowned upon Mexican divorces in our adjudications on foreign edicts brings with it no reason why we should assume that everyone is as cognizant as lawyers and judges are of the discredit and disrepute in which these decrees are held. There is nothing in our divorce law which neutralizes or changes the doctrine we have always adhered to, that a wrongful act and a wrongful intent must concur before a criminal penalty falls.
Mr. Average Citizen who, as he did here, submits to one of the major state departments his application for a marriage license and sets forth therein in full that he was divorced by a Mexican divorce decree, giving its date and the court which granted it, has a right to assume he can utilize the very license issued by the state without going to jail for having done so.
It must come as a distinct shock to an honest person who has made full disclosure to his sovereign state as to his exact marital status and secured a license to embark upon another matrimonial venture to find that without wrongful or criminal intent he automatically becomes a convict on a criminal charge which he cannot even defend because the court refuses to accept the very evidence he relied upon and which was, inferentially at least, approved by the state itself at the time he made his original intentions known. Such a result is not good law, and his incarceration cannot conceivably be synonymous with that kind of justice which we so proudly proclaim.
There is much in the learned opinion of the majority supporting this view.
I would reverse the conviction for these reasons.
Oliphant, J., concurring in result.
*17For dismissal — Chief Justice Vanderbilt, and Justices Hehee, Oliphant, Burling, Jacobs and Beennan — 6.
For reversal — Justice Wacheneeld — 1.