We appreciate the fact, as set out in the petition for rehearing, that the arresting officer's testimony is not wholly in accord with the facts related in the question quoted in the opinion. This, however, does not change the situation as appellant not only answered the question put to him but followed with an affirmance of the facts upon which the question was based.
But there are other reasons why the judgment must be affirmed. A careful analysis of the testimony shows that there is no substantial evidence that appellant was ever married to any others than Marie Shay, Viola Kelly and Pauline Gallagher. The trial court may have believed either that a divorce or annulment had been secured by the first one mentioned or that appellant was the legal spouse of the second one mentioned under the provisions of section 61 of the California Civil Code. [2] Appellant testified positively that he had been absent from, had not seen or heard of or from Marie Shay for about six years before he married Viola Kelly and that he did not know whether she was dead or alive. Under this testimony the second marriage was *Page 184 "valid until its nullity is adjudged by a competent tribunal". (Sec. 61, Civ. Code.)
The testimony demonstrates that, of the three marriages proved, he contracted the third one without any dissolution of the second one. In these circumstances neither the trial court nor an appellate court will indulge in strained inferences from inconsistent, indefinite and improbable testimony that perhaps, after all, appellant was married to someone else when he married the second wife, therefore he should be acquitted of legal wrong in taking the third wife under representation that he was an unmarried man.
Rehearing denied.
Craig, Acting P.J., and Archbald, J., pro tem., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 15, 1933.