2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-20. Bigamy
- A person commits the offense of bigamy when he, being married and knowing that his lawful spouse is living, marries another person or carries on a bigamous cohabitation with another person.
- It shall be an affirmative defense that the prior spouse has been continually absent for a period of seven years, during which time the accused did not know the prior spouse to be alive, or that the accused reasonably believed he was eligible to remarry.
- A person convicted of the offense of bigamy shall be punished by imprisonment for not less than one nor more than ten years.
(Laws 1833, Cobb's 1851 Digest, p. 814; Code 1863, §§ 4415, 4416; Code 1868, §§ 4456, 4457; Code 1873, §§ 4530, 4531; Code 1882, §§ 4530, 4531; Penal Code 1895, §§ 376, 377, 378; Ga. L. 1910, p. 61, § 1; Penal Code 1910, §§ 367, 368, 369; Code 1933, §§ 26-5601, 26-5602, 26-5603; Code 1933, § 26-2007, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references.- Marriage generally, T. 19, C. 3.
Law reviews.- For note, "Mistake of Fact and Mistake of Law as Defenses to a Prosecution for Bigamy," see 15 Mercer L. Rev. 275 (1963).
JUDICIAL DECISIONS
Venue.
- Under O.C.G.A. § 16-6-20(a), venue is proper for the offense of bigamy in the county where a person, being married and knowing the lawful spouse is living, carries on a bigamous cohabitation with another person. Edwards v. State, 188 Ga. App. 667, 374 S.E.2d 97 (1988).
Prima facie case.
- In a prosecution for bigamy the state makes out a prima facie case by proving the first marriage, and that while the first spouse was living the defendant contracted a second marriage, knowing that the first marriage had not been dissolved by death or divorce. The knowledge need not be shown by direct evidence, but may be inferred from circumstances. Robinson v. State, 6 Ga. App. 696, 65 S.E. 792 (1909); Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933).
In a prosecution for bigamy the state makes out a prima facie case when it proves that the man accused married two different women at different times, and that when he married the second time he knew that his first wife was alive. Reikes v. State, 71 Ga. App. 324, 30 S.E.2d 806 (1944).
Burden on state to establish proof of first marriage.
- Every essential element of the crime must be established, and, without proof of the first marriage, the state fails to establish the crime. Stebbins v. State, 78 Ga. App. 534, 51 S.E.2d 592 (1949).
Knowledge that lawful spouse is alive is essential element of the crime, and must be charged in the indictment. Herrin v. State, 27 Ga. App. 189, 107 S.E. 779 (1921).
Cohabitation with second woman not essential to crime. Nelms v. State, 84 Ga. 466, 10 S.E. 1087, 20 Am. St. R. 377 (1890); Pitts v. State, 147 Ga. 801, 95 S.E. 706 (1918).
Crime is completed upon second marriage.
- Going through the form of marriage with knowledge that the former spouse is living constitutes the offense. The offense is completed upon the second marriage. Pitts v. State, 147 Ga. 801, 95 S.E. 706 (1918).
Jury could infer there was no criminal intent.
- In a prosecution for bigamy, if it appears to the satisfaction of the jury that the defendant honestly believed that the first marriage had been dissolved by a divorce obtained by the other spouse, and this belief was induced by reasonable diligence to ascertain the truth, the jury would be authorized to infer that there was no joint operation of act and intent to commit a crime. Robinson v. State, 6 Ga. App. 696, 65 S.E. 792 (1909).
If the defendant honestly believes to have a right to make the second marriage, and it appears this honest belief is the result of reasonable diligence to ascertain the truth, then the jury would have the right to infer that the defendant had no criminal intent, and was therefore not guilty of any crime; and where honest belief founded on reasonable diligence to ascertain the truth appears, the defendant should be acquitted, if the jury has a reasonable doubt as to whether or not there is criminal intent - a necessary ingredient of every crime. Reikes v. State, 71 Ga. App. 324, 30 S.E.2d 806 (1944).
Cited in Rogers v. State, 139 Ga. App. 656, 229 S.E.2d 132 (1976); Norris v. State, 230 Ga. App. 492, 496 S.E.2d 781 (1998).
RESEARCH REFERENCES
Am. Jur. 2d.
- 11 Am. Jur. 2d, Bigamy, § 1 et seq.
C.J.S.- 10 C.J.S., Bigamy, § 2 et seq.
ALR.
- Religious belief as affecting crime of bigamy, 24 A.L.R. 1237.
Presumption and burden of proof in prosecution for bigamy as to dissolution of first marriage, 56 A.L.R. 1273.
Bigamy as affected by place where second or later marriage is celebrated, 70 A.L.R. 1036.
Mistaken belief in existence, validity, or effect of divorce or separation as defense to prosecution for bigamy or allied offense, 56 A.L.R.2d 915.
Construction of statute making bigamy or prior lawful subsisting marriage to third person a ground for divorce, 3 A.L.R.3d 1108.
Rights in decedent's estate as between lawful and putative spouses, 81 A.L.R.3d 6.
Validity of bigamy and polygamy statutes and constitutional provisions, 22 A.L.R.6th 1.
