¶1delivered the opinion of the court.
¶2The rule is thoroughly settled that one indicted for bigamy must be acquitted on that indictment if he can show that the first mariage alleged in the indictment is void by reason of the existence of a prior lawful marriage, still existing. State v. Goodrich, 14 W. Va., 834; Commonwealth v. McGrath, 140 Mass., at pages 297, 298, 6 N. E., 515; Am. & Eng. Enc. Law (2d ed.), vol. 4, p. 38; Crawford's Case, 73 Miss., 172, 18 South., 848, 35 L. R. A., 224. In Goodrich's Case, supra, the court said: “The defense which the prisoner sought to establish by the evidence which the court rejected was that he had, on the 30th of April, 1873, in Enion county, Ohio, been lawfully married, according to the laws of Ohio, to Sarah Snodgrass, and that she was still living, and that this marriage was in full force when he was married, on the 29th day of November,' 1874, to Frances L. Smith, in Wisconsin; that he (the prisoner) being then a married man, this marriage to Frances L. Smtih was a mere nullity, and absolutely void ab initio. The indictment alleged the offense of the prisoner to be the marrying by the prisoner,' on May 5, 1877, in Iowa, of Clara Allen, while his wife, Frances L. Smith, was living. It was incumbent on the state to show that Frances L. Smith was his lawful wife, and the prisoner’s defense, sought to be established by the evidence rejected by the court, was that Frances L. Smith was never the lawful wife of the prisoner, as he was a married man when he married her. If the first marriage laid in the indictment was a nullity, then the second marriage laid in the indictment could *558not constitute the offense of bigamy; and, if tbe prisoner was a married man when the first marriage charged in the indictment took place, tbis marriage was an absolute nullity in Wisconsin.”
¶3Tbe attorney general, with that commendable frankness which has always characterized bis conduct of cases at tbis bar, confesses that this error is fatal. Tbe authorities speak but one voice on the subject. Tbe case made here is this: The indictment charges that the appellant, on the 12th of January, 1903, married, in Mississippi, Teresa Whetstone, having theretofore married Rosa Pitts, Rosa Pitts being alive at tbe time of tbe marriage to Teresa Whetstone. Tbe evidence shows that appellant was married on tbe 6th of September, 1900, to Patty Morris, át Carville, in tbe state of Texas; second, that appellant married Rosa Pitts, at Russellville, in the state of Arkansas, subsequently, whilst Patty Morris was still living and his lawful wife; and, third, that afterwards, whilst both of these women were alive, be married in tbis state Teresa Whetstone. Under tbe authorities cited upon these facts, it is obvious that the court should have given the twelfth charge asked by the defendant, which is, in effect, a peremptory charge. Tbe first marriage alleged in tbe indictment being the one with Rosa Pitts, and that- marriage being void because appellant bad theretofore been lawfully married to Patty Morris, who was then living, and who was also living at the time of the marriage to Teresa Whetstone, tbe defendant could not be convicted of bigamy under this indictment and proof.
¶4Reversed and remanded.