JOHN L. GREEN, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Mr. Justice VanValkenbur&h

delivered the opinion of the court:

In April, 1884, at a regular term of . the Circuit Court held in Marion county, the plaintiff' in error, John L. Green, was indicted for polygamy. Such indictment charges that on -the 16th day December, 1866, in the county of Marion, John L. Green was married to one Emeline, that on the 28th day of February, 1884, he married one Lizzie Givens, Emeline, his former wife, being then alive, and said Green never having' been legally divorced from the' saidEmeline. The defendant pleaded not guilty. Was tried and found guilty. The defendant’s counsel then made a motion for a new trial upon several grounds, among others “ because there was no evidence that the defendant was' ever married to Emeline.” The court overruled this motion and the defendant duly excepted to such judgment and brought his writ of error to this court. The evidence as appearing in the record before us is as follows: I). S. Du-frees testified : “ I know the defendant, a colored man, he came to Florida in 1867. He was then living with Emeline as his wife, a colored woman. He. lived with her as man and wife and continued so to live until the-day -, 1884, when he was married to [Lizzie Givens. Emeline is still living. I only know he came from South Carolina with her and raised a family of children by her. I also know that she had one child, a mulatto, born before he lived with her. He always treated Emeline and held her out as his wife.”

To this evidence defendant’s counsel objected as being insufficient to prove the marriage.

The court overruled the objection and defendant excepted. Samuel H. Owens then testified: “ I know the defendant. Knew him before he came to Florida. He was a slave and also Emeline. They were living together in 1855. He came to Florida in 1867, and since he came here he has lived with Emeline as his wife. He lived with her in South Carolina before he camehereand she had several children by him. She had one child, a mulatto, before he lived with her. I don’t know whether the father of the child is living or not.”

W. A. Wilkinson testified: “I am an ordained minister of the Gospel. I performed the marriage ceremony between John L. Green and Lizzie Givens on the --- day of-, 1884.”

The defendant offered no witnesses, and the foregoing is 'all the evidence in the case.

Our statute (McClellan’s Dig., 875, sec. 4,) provides that u whoever having a former husband or wife living marries another person or continues to cohabit with such second husband or wife in this State shall,” &e., be deemed guilty of polygamy and be punished, &c. By section 7, chap. 149, McClellan’s Digest, page 758, chap. 1552, Laws 1866, it is provided that “ in all cases where colored persons have resided and lived together as husband and wife, and have before the world recognized each other as husband and wife, they shall be deemed and taken to be husband and wife as fully and lawfully as if the marriage had been solemnized by a proper officer legally authorized to do and perform the same, and all children born of such parents are hereby legitimized and made heirs of their parents and capable of inheriting under the laws of this State, as though he, she or they had been horn in lawful wedlock.”

This statute in no way changes the rule to be applied in this action for polygamy. These parties came into this State subsequent to the passage of that law. At common law cohabitation and repute were always adequate in questions of legitimacy, and such proof would be sufficient in most civil actions. In a criminal case, however, presumptions do not apply. In cases of polygamy it has always been held that in order to convict the defendant, the mai-riage must be proven by evidence .other than of cohabitation and repute. In'the case of Burns vs. Burns, 13 Fla., 369, this court having this question of the sufficiency of the proof of marriage before them say in the head note: “ In civil writs, generally, presumptive evidence, as distinguished from direct evidence of marriage, is •prima fade sufficient, as where a man and woman have cohabited together, speaking habitually to and of each other as husband and wife, and of the time and circumstances of their marriage, and the like; but in suits where criminal conversation, adultery, &c.,. constitute the essence or foundation of the: action, a more rigid rule is required.” In the opinion in the same ease the court cite and approve from Bishop-on Marriage and Divorce, the following: “ When parties, are living together as husband and wife, the legal presumption, favoring innocence, is that they are persons married to one another, and not persons living in the violation of morality, and decency, and law. But when the issue to be-decided in the case is such as to show that the one against whom it is decided had violated morality,and decency, and law, if the other party were married to a third person, then no presumption of such marriage can arise simply from cohabitation as husband and wife. In prosecutions for criminal conversation, and upon an indictment for adultery,, there must be direct evidence of the marriage, in distinction, from presumptive evidence.” Such positive evidence is equally necessary upon an indictment for polygamy in order to a conviction. 1 Bishop on Marriage and Divorce* §§441, 442, &c.; Brown vs. State, 52 Ala., 388 ; Case vs. Case, 17 Cal., 598 ; Clayton vs. Wardell, 5 Barb., 214 ; 2 Wharton’s Criminal Law, §1696; Chamberlain vs. Chamberlain, 71 N. Y., 423 ; Clayton vs. Wardell, 4 Comstock, 230.

In this case there is not the semblance of evidence that the defendant was married to Emeline, and consequently that he was guilty as charged in the indictment.

The judgment is reversed and a new trial awarded.