intent is. And as a part of the rule, every person is conclusively presumed to know the law,2 yet not the facts. In the case supposed in the last section, the person accused meant to do the exact thing which the law and good morals approved, not what either forbade. If he failed therein his mistake was of fact, which excuses. But one who does what the law condemns, however his conscience may approve and his religious faith require,— as, for example, a sincere member of the Mormon church, who marries a second wife while living with the first, commits this offense; nor is he protected by our written constitutions. The statute is valid.

§ 597. Words of statute.— The exact words of the particular statute should be attended to. Thus,

"Voluntarily withdrawn." - The exceptive clause in the Massachusetts statute requires the absent party to have "voluntarily withdrawn " from the other, as well as remained away seven years. One, therefore, who for seven years has deserted an adhering consort cannot in Massachusetts avail himself of this exception. Again,—

False rumor, etc.- The Pennsylvania act of March 13, 1815, excused the married party whose consort should have been absent two years, in marrying again, upon any false rumor in appearance well founded of his death. And it was ruled that, to justify a wife in a second marriage, there must be a general report of the husband having died at some particular place, and by some particular means—as, by shipwreck - which the report specifies."

But a belief founded on independent facts and circumstances is of a different character. As to this, the statute is silent, and hence the rules of the common law must be the guide.

1 Dotson v. S., 62 Ala. 141, [34 Am. R. 2. It is no defense that defendant believed or was advised that an agreement with his wife to live separate annulled the marriage. S. v. Zichfeld, 23 Nev. 304, 46 Pac. R. 802, 62 Am. St. R. 800, 34 L. R. A. 784; P. v. Weed, 29 Hun, 628; s. c., 96 N. Y. 625; S. v. Hughes, 58 Iowa, 165, 11 N. W. R. 706; Medrano v. S., 32 Tex. Cr.

R. 214, 22 S. W. R. 684, 40 Am. St. R. 774; S. v. Sherwood, 68 Vt. 414, 35 Atl. R. 352.]

2 Crim. Law. I, §§ 294-300; Davis v. Com., 13 Bush, 318.

3 Crim. Law, I, §§ 301-309.

4 Id., I, §§ 309, 344, 345; Reynolds v. U. S., 98 U. S. 145; U. S. v. Reynolds, 1 Utah, 226. And see U. S. v. Miles, 2 Utah, 19; Miles v. U. S., 103 U. S. 304.

5 Ante, § 595.

6 See the adultery case of Com. v. Thompson, 11 Allen, 23, [87 Am. D. 685.]

7 Com. v. Smith, Oyer and Ter

[§ 597a. Polygamy under the Edmunds-Tucker Act.- The act of congress passed March 22, 1882, known as the EdmundsTucker Law (22 Stat. 30, ch. 47), by its third section provides "that if any male person, in a territory or other place over which the United States has exclusive jurisdiction, hereafter cohabits with more than one woman, he shall be deemed guilty of a misdemeanor." The same act, by its first section, amended the former statute against bigamy by substituting the word 'polygamy" for "bigamy," and including in its provisions. "any man who thereafter simultaneously, or on the same day, marries more than one woman, in a territory," etc. Under this act sexual intercourse is not necessary to the offense of cohabitation, and the offense is committed even though the cohabitation be in secret. Holding a woman out to the world as lawful wife is cohabiting with her. The offense of cohabitation is a continuous offense and does not consist of an isolated act. The statute is silent as to what shall constitute a marriage. The statute of the territory may be resorted to in a prosecution under the act."]

II. THE PROCEDURE.

8598. Course of discussion.- We shall consider, first, the indictment; secondly, the evidence.

First. The indictment:

Conforming to statute.- Since the statutes of our states differ in their terms, an obvious proposition is that the indictment should conform to the particular statute on which it is drawn."

miner, Philadelphia, May, 1816, before Rush, President (pamphlet, p. 229), 1 Whart. Dig. (6th ed.) 1177.

[Cannon v. U. S., 116 U. S. 55, 6 S. Ct. 278, 29 L. ed. 561; U. S. v. Musser, 4 Utah, 153, 7 Pac. R. 389; U. S. v. Smith, 5 Utah, 232, 14 Pac. R. 291; also 5 Utah, 273, 15 Pac. R. 1.]

2 [U. S. v. Peay, 5 Utah, 263, 14 Pac. R. 342. See U. S. v. Clark, 6 Utah, 120, 21 Pac. R. 463, and U. S. v. Langford, 2 Idaho, 519, 21 Pac. R. 409.]

[U. S. v. Snow, 4 Utah, 280, 9 Pac. R. 501; U. S. v. Higgerson, 46 Fed.

R. 751; U. S. v. Harris, 5 Utah, 436, 7
Pac. R. 75.]

[Ex parte Snow, 120 U. S. 274, 7
S. Ct. 556, 30 L. ed. 658. But see
U. S. v. Eldredge, 5 Utah, 161, 13 Pac.
R. 673; also 5 Utah, 189, 14 Pac. R. 42.]

[U. S. v. Tenney (Ariz.), 8 Pac. R. 295; U. S. v. Tenney (Ariz.), 11 Pac. R. 472; U. S. v. Simpson, 4 Utah, 227, 7 Pac. R. 257.]

[As to the indictment under the Edmunds-Tucker Act (see ante, § 597a), see U. S. v. Tenney (Ariz.), 11 Pac. R. 472; U. S. v. Tenney (Ariz),

English. On the before-recited enactment of 9 Geo. 4, ch. 31, § 22,1 a common English form sets out that, at a time and place named, the defendant married one B., and then and there had her for his wife; and afterward, while he was so married, at a time and place specified, he "feloniously and unlawfully did marry and take to wife one C., his former wife being then alive, against," etc.2

§ 599. Venue-(And time). As in other cases, the venue is essential; together with the time, at least, of the marriage which constitutes the offense, and, by some opinions, of both marriages. Therefore,―

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Apprehension Custody. If the jurisdiction is based on the fact of the prisoner's having been apprehended in the county of the indictment, or his being in custody there, this matter must be alleged.

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§ 600. Different terms of statute (Indiana).— The Indiana statute is in different words from the English and most other of the American ones. It makes punishable any person who, “being married, shall marry again, the former husband or wife being alive, and the bond of matrimony still undissolved, and no leal presumption of death having arisen." And it is a good form, according to the practice in this state, to say that, at a time and place named, the defendant, being married to B., and she being alive, and the bond of matrimony being still undissolved, and no legal presumption of B.'s death having arisen, did unlawfully and feloniously marry another woman, to wit, one C., contrary, etc.

8 Pac. R. 295; U. S. v. Kuntze, 2 Idaho, 446, 21 Pac. R. 407. Failure to allege that defendant is a male is not a fatal defect. Cannon v. U. S., 116 U. S. 55, 6 S. Ct. 298, 29 L. ed. 561; U. S. v. Musser, 4 Utah, 153, 7 Pac. R. 389. As to joinder of counts, see U. S. v. Groesbeck, 4 Utah, 487, 11 Pac. R. 542.]

1

Ante, § 581.

Now,

241]; Williams v. S., 44 Ala. 24; Com. v. Bradley, 2 Cush. 553; Com. v. Godsoe, 105 Mass. 464.

4 Rex v. Fraser, 1 Moody, 407.

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Reg. v. Whiley, 2 Moody, 186. And see Crim. Pro., I, § 62, note.

6 Bicknell, Crim. Pr. 483, referring, for the statute, to Felony Act, § 46, 2 G. & H. 452; for correctness of the form, to Hutchins v. S., 28 Ind. 34.

2 Archb. Crim. PL. & Ev. (10th Compare with May v. S., 4 Tex. Ap.

Lond. ed.) 629.

3 Davis v. Com., 18 Bush, 818; S. v. Johnson, 12 Minn. 476, [93 Am. D.

424. [See S. v. Sherwood, 68 Vt. 414, 35 Atl. R. 352.]

§ 601. Allegation of first marriage - (English practice). It is perceived that the above English form sets out the time and place of the first marriage, and the Indiana does not. All the English forms which the author has observed are in this respect like the above. Probably the question was never raised in an English court, while yet the necessity of the allegation has been taken for granted. Consistently with either view, it has been deemed that a variance between allegation and proof in the name of the first wife would be fatal." Chitty says: "The indictment must state both marriages, and an averment must also be introduced that the former consort was alive at the time of the second marriage. To this statement no venue need be inserted. The first marriage may be laid in the county where it actually took place, though the venue is laid in another.""

1 See, among other places, 3 Chit. Crim. Law, 718-722; Cro. C. C. (10th ed. by Ryland), 97; Matthews, Crim. Law, 525; 5 Burn, Just. (28th ed.) 254; Rex v. Edwards, Russ. & Ry. 283. The oldest form I have seen is in the very entertaining case of Mary Moders, who was indicted on Jac. 1, ch. 11 (ante, § 579), in 1663, and acquitted. It is as follows: "That she the said Mary Moders, late of London, Spinster, otherwise Mary Stedman, the wife of Tho. Stedman, late of the City of Canterbury in the county of Kent, Shoemaker, May 12, in the reign of his now majesty the sixth. at the Parish of St. Mildred's in the City of Canterbury, in the county aforesaid, did take to husband the aforesaid Thomas Stedman, and him the said Thomas Stedman then and there had to husband. And that she the said Mary Moders, alias Stedman, April 21, in the 15th year of his said majesty's reign, at London, in the Parish of Great St. Bartholomew's, in the ward of Farringdon without, feloniously did take to husband one John Carleton, and to him was married, the said Tho. Stedman her former husband being then alive, and

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in full life: against the form of the statute in that case provided, and against the peace of our said sovereign lord the king, his crown and dignity," etc. The prisoner had no counsel, and no question was made as to the sufficiency of the indictment. Rex v. Moders, 6 How. St. Tr. 273. In the celebrated case of the Duchess of Kingston, the indictment in the first count simply charged that the defendant, "being then married, and then the wife of the said Augustus John Harvey," did contract the second marriage. But the second count set out the first marriage substantially as in the case of Mary Moders. Rex v. Kingston, 20 How. St. Tr. 355, 371.

2 Reg. v. Gooding, Car. & M. 297. But see Collum v. S., 10 Tex. Ap. 708.

33 Chit. Crim. Law, 719, note. 41 East, P. C. 469; [Hiler v. P., 156 Ill. 511, 41 N. E. R. 181, 47 Am. St. R. 221; Pritchard v. P., 149 Ill. 50, 36 N. E. R. 103; Parker v. S., 77 Ala. 47, 54 Am. R. 43; McAfee v. S., 38 Tex. Cr. R. 124, 41 S. W. R. 627.] 5 Stark. 62.

6 Stark. 434, note.

§ 602. With us.- A part of our American courts hold it to be necessary to allege the time and place of the first marriage, and to whom. It was so laid down in Vermont, as to time and place, even in a case where the event transpired in another state; because it is a rule, said Redfield, C. J., "that every traversable fact must be directly alleged, with time and place. The first marriage, in prosecutions for bigamy, is always traversable." The same, as to time, place and the name of the first husband or wife, was held in Kentucky, overruling a former decision to the contrary. On the other hand, the North Carolina court has adjudged it to be unnecessary to state the place of the first marriage. And it is held in Indiana that neither the place and time, nor the maiden name of the first wife, need be given, but the general allegation that the defendant "did unlawfully, feloniously and knowingly, being married, marry," etc., is sufficient."

1S. v. La Bore, 26 Vt. 765, 767. 2 Davis v. Com., 13 Bush, 318. 3 Com. v. Whaley, 6 Bush, 266. 4S. v. Bray, 13 Ire. 289; [S. v. Davis, 109 N. C. 780, 14 S. E. R. 55.]

Hutchins v. S., 28 Ind. 34. Said Fraser, J.: "It is objected that the indictment ought to have alleged the time and place of the first marriage, by whom it was solemnized, and the maiden name of the first wife. And so it is said are the forms, which are some evidence of what the law is. In Vermont these allegations were held to be necessary. It was there said: 'This is merely formal, and of the least possible importance; but, unless all form is to be disregarded, which we could not do without a statute to that effect, after having so long regarded it as essential, then this indictment is fatally defective.' S. v. La Bore, 26 Vt. 765. Undoubt edly there could be no reason, save that of form, for such particularity; and the Vermont case, which, so far as we are aware, is the only one where it is adjudged to be necessary [the Kentucky case is of later date], puts it upon that ground exclusively.

But our statute dispenses with needless forms, and therefore makes this indictment sufficient. 2 G. & H., p. 463, §§ 59, 60. The absence of the averments alluded to cannot, it is very certain, 'prejudice the substantial rights of the defendant upon the merits.' It was adjudged in North Carolina, even in the absence of such a statute as ours, that it was not necessary to aver the time and place of the marriage. S. v. Bray, 13 Ire. 289. Mr. Wharton, in his precedents (2d ed. 993), gives a form drawn by the attorney-general of Pennsylvania, in 1790, in which the existence of the first marriage is alleged almost exactly as in the case before us. Indeed, as the first marriage is not criminal, but its existence a mere condition which makes the second marriage a crime, it is of itself a fact, and there is, as was admitted by the Vermont court, no substantial reason why the averment of it should ever have been required except in general terms." See also on this question, Sauser v. P., 8 Hun, 302; S. v. Armington, 25 Minn. 29; [S. v. Hughes, 58 Iowa, 165, 11 N. W.