majority">Lotton, J.

The plaintiff in error was convicted of unlawful cohabitation with one Nancy J. Lane, who it is alleged in the indictment is a married woman, the lawful wife of William H. Lane. The principal errors allaged relate to the exclusion of testimony for the defense.

William H. Lane testified that he was the husband of Nancy J. Lane; that they were married in Blackhawk, Colorado, in 1890, and that they had resided together as husband and wife from that time until the 5th day of December, 1909. Upon cross-examination he testified that before he married Nancy J. Lane he was married to Mattie Clayton in Ioavu in 1887. He was then asked whether Mattie Clayton was still living, and Avhether he liA'ed with her after he was married to her. Objections to these qiiestions as not being proper cross-examination Avere sustained. The accused then offered to prove by cross-examination of this Avitness that “Mattie Clayton is still living, and is still the laAvful wife of the Avitness on the stand, and that the Nancy J. Lane described in the information is not his wife, as claimed by him in his testimony.” He also* offered to prove that at the time Lane claims to have been married to Nancy Lane he Avas the lawful husband of Mattie Clayton. Objections were made to these offers, which were sustained. The state then proved circumstances tending to establish the cohabitation of the defendant and Nancy J. Lane in this state. At the conclusion of its evidence the state moved to strike out the testimony of the Avitness Lane on cross-examination to the effect that he had been married to Mattie Clayton in IoAva in 1887, which motion Avas sustained. .The defendant then called Mr. Lane as his Avitness, and propounded questions seeking to elicit the fact that he had been married to Mattie Clayton before he married Nancy J. Lane; that Mattie Clayton was still living; and that from and after the year 1887 he and Mattie Clayton lived and cohabited together as husband and wife, and so *640held themselves -out to the world. Objections were made to all questions of this nature, which were sustained and exceptions taken. ' The defendant then offered to prove that William J. Lane and Mattie Clayton in 1887, in the state of Iowa, “were duly married in accordance with the laws of the state of Iowa, and thereafter lived together as man and wife, and held themselves out to the world as man and wife, and have ever since remained as man and wife, and that said Mattie Clayton is still living, and that the claimed marriage of the witness with Nancy J. Lane described in the information was wholly void by reason of this former marriage, which has been existing between said William J. Lane and the said Mattie Clayton from the time of said marriage in the year of 1887 to the present time”, and made other offers of proof of the fact that Lane was a married man at the time he testifies he was married the second time. These offers were rejected and the evidence excluded.

We are at a loss to understand upon what ground this testimony was excluded. Ruder the charge in the information, the fact that Nancy J. Lane was a married woman, the wife of William J. Lane, was a material element of the crime charged necessary to be proved. If at the time Lane attempted to marry her he had been married to Mattie Clayton, and they have “ever since remained as man and wife”, then Nancy J. Lane never became his wife, and the crime charged was not established. We think this case is governed by the case of Reynolds v. State, 58 Neb. 49. In that case Reynolds was indicted for bigamy in marrying one Jennie Ford in Montana in 1895,. and one Elsie J. Caulk in Nebraska in 1897. The defense was that the Montana marriage was void, for the reason that both the contracting parties were married at the time. Jennie Ford testified for the state as to her marriage to Reynolds. She also testified that she had formerly been married to one Purman, and that she had obtained a divorce from him in 1893. It was also shown that her only knowledge of this divorce was derived from a *641letter written to her by some person in Kansas City. The attorney general in that case contended that the laAV Avould presume, in faA’or of the innocence of Jennie Ford, that Purman Avas dead- at the time she contracted the marriage with Reynolds. His successor noAV contends on like grounds that it avíII be presumed in this case that Lane Avas free from matrimonial ties at the time he married Nancy. In that case the court said: “The better opinion seems to be that there is in such case no absolute and inflexible presumption, but that the question is to be determined by the jury from all the facts in the case.” It seems to us that this must be the rule; that in a criminal case facts must always outweigh presumptions, and that the plaintiff in error Avas entitled to prove by Lane or by any other competent Avitness that at the time of the alleged marriage in Colorado Lane was a married man,'and therefore incompetent to enter into the marriage relation. 1 Bishop, Marriage, Divorce and Separation, sec. 959.

It is argued, however, that he should further have offered to prove that no decree of divorce had been rendered dissolving the marriage relation between Lane and Mattie Clayton. But this burden was not upon him. When Lane testified that he had been married to Mattie Clayton, the state should have gone further and proAed by competent evidence that on account of this relationship having.been dissolved, either by death or divorce, he Avas competent to contract a matrimonial alliance at the time of the ceremony in Colorado. Reynolds v. State, supra.When the state procured the withdraAval from the jury of Lane’s testimony that he had been married before, then the defendant beloAV was certainly entitled to prove the existence of the marriage relation betAveen Lane and Mattie Clayton as a part of his defense. The facts should have been permitted to go to the jury, and it Asms for.them to determine from the evidence whether or not Nancy J. Lane was a married woman at the time of the alleged cohabitation with the defendant,

*642Plaintiff in error requested an instruction to the effect that, if the jury found that Lane had been married prior to his claimed marriage to Nancy J., and that the former wife was living at that time, then this claimed marriage was void, unless they found beyond a reasonable doubt that Lane had been lawfully divorced from his former wife. It was not error to refuse this instruction as the evidence stood, because the testimony upon Avliich it was based had been excluded; but, had such evidence been in the case, it Avould have been prejudicial error to refuse to give it. We are of the same opinion as to the refusal to give instruction No. 12, to the effect that, if the jury found that “William H. Lane had been married previous to the marriage he claimed to have had with Nancy J. Lane, then, in the absence of evidence to the contrary, the laAV presumes this wife was still living, and Avas still his AA’ife at the time of the claimed marriage Avitli Nancy J. Lane.” Lane testified he was married to Mattie Clayton in 1887, and was married to Nancy J. Lane in 1890. There is no presumption of death in this short inteiwal. We think the accused has been deprived of his.right to produce evidence material in his defense.

The judgment of the district court is therefore

Reversed.

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