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$ 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.

18. v. La Bore, 26 Vt. 765, 767. But our statute dispenses with need2 Davis v. Com., 13 Bush, 318. less forms, and therefore makes this 3 Com. v. Whaley, 6 Bush, 266. indictment sufficient. 2 G. & H.,

48. v. Bray, 13 Ire. 289; (S. v. Davis, p. 463, SS 59, 60. The absence of the 109 N. C. 780, 14 S. E. R. 55.]

averments alluded to cannot, it is 3 Hutchins v. S., 28 Ind. 34. Said very certain, 'prejudice the subFraser, J.: “It is objected that the stantial rights of the defendant upon indictment ought to have alleged the the merits.' It was adjudged in time and place of the first marriage, North Carolina, even in the absence by whom it was solemnized, and the of such a statute as ours, that it was maiden name of the first wife. And not necessary to aver the time and so it is said are the forms, which are place of the marriage. S. v. Bray, 13 some evidence of what the law is. Ire. 289. Mr. Wharton, in his preceIn Vermont these allegations were dents (2d ed. 993), gives a form held to be necessary. It was there drawn by the attorney-general of said: “This is merely formal, and of Pennsylvania, in 1790, in which the the least possible importance; but, existence of the first marriage is alunless all form is to be disregarded, leged almost exactly as in the case which we could not do without a before us. Indeed, as the first marstatute to that effect, after having riage is not criminal, but its existso long regarded it as essential, then ence a mere condition which makes this indictment is fatally defective.' the second marriage a crime, it is of S. v. La Bore, 26 Vt. 765. Undoubt itself a fact, and there is, as was ad. edly there could be no reason, save mitted by the Vermont court, no that of form, for such particularity; substantial reason why the averment and the Vermont case, which, so far of it should ever have been required as we are aware, is the only one except in general terms." See also where it is adjudged to be necessary on this question, Sauser v. P., 8 Hun, [the Kentucky case is of later date), 302; S. v. Armington, 25 Minn. 29; puts it upon that ground exclusively. (S. v. Hughes, 58 Iowa, 165, 11 N. W.

In nice legal principle,-as derivable from the common law alone, since the offense consists of the second marriage and the first is only matter of inducement,' the general averment, without the particulars of time, place and venue, would seem to be enough as to such first marriage. True, as said in the Vermont case, the fact is traversable, it must be proved, and hence it must be alleged. But how minute must the allegation be? The common law furnishes various parallels. Thus, in larceny, the ownership of the property stolen, which, like the first marriage in polygamy, is matter of inducement, while still it is an indispensable element in the crime, for no man can steal his own goods, must be averred in the indictment and proved at the trial. But by universal usage the averment is only in the like general terms with that of the first marriage in the Indiana forms. It does not state when, where and by conveyance from whom the ownership was acquired. Yet, looking beyond the common law into our written constitutions, we find there what might not improperly lead to the opposite conclusion. The first marriage is practically one-half of the case, and is often the most nice and delicate part. Commonly it can be proved only by exhibiting the particulars. And, in reason, under a constitution declaring, as some of ours do, that “no subject shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally, described to him," there is fair ground for rejecting a mere general allegation of half of the case, as not complying with this requirement, and for holding the meaning to be, that what is special to the particular instance, in distinction from the crime in general, must be set out. On the whole, this is a sort of question on which uniformity of judicial opinion is hardly to be expected.

$ 602a, Lawful.- In Georgia it is necessary to allege that the first marriage was “lawful,” or to set forth facts equivalent to this allegation. But the code has the expression “the lawful husband or wife being alive.”. In the absence of these or R. 706; S. v. Nadal, 69 Iowa, 478, 29 Com., 92 Ky. 34, 17 S. W. R. 189; N. W. R. 451; S. v. Hughes, 35 Kan. Cathron v. S., 40 Fla. 468, 24 S. R. 496.] 626, 12 Pac. R. 28, 57 Am. R. 195; 1 Ante, $ 422. Com. v. McGrath, 140 Mass. 296, 6 N. *2 Crim. Pro., II, SS 718–726, 752 E. R. 515; Watson v. S., 13 Tex. Ap. 3 King v. S., 40 Ga. 244. 76; Nelms v. S., 84 Ga. 466, 10 S. E. R. 4 Reed's Ga. Crim. Law, 52 1087, 20 Am. St. R. 377; Faustre v.

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other like special terms, the word is unnecessary; for the mere simple averment of a marriage means a lawful one.'

$ 603. Second marriage. The second marriage must be charged with the particulars of time and place. And, added to this, on principle, and by the common practice,“ should be the name of the person to whom. Unless to cover a statutory word there is no necessity to aver that it was “unlawful;” the fact of the first marriage being set out, its unlawfulness appears." In Vermont, under a statute 6 making punishable one who, having "a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife in this state," it is held that an indictment on the latter clause, where the second marriage was celebrated in another state, must charge it to have been unlawful in the state of its celebration. The Minnesota court has held the contrary.


Kopke v. P., 43 Mich. 41.

habit, in this state, with the woman 2 Ante, $ 599. [See also Cartnon v. to whom he was lawfully married. S., 40 Fla. 408, 24 S. W. R. 496; In re There should, therefore, have been Watson, 19 R. I. 342, 33 Atl. R. 873; an allegation that the second marTucker v. P., 117 IIL. 88, 7 N. E. R. 51. riage, in New Hampshire, was unBut where the marriage took place lawful, or the respondent committed in another state a particular place no offense by continuing to cohabit need not be alleged. C. v. McGrath, with the woman in this state.... 140 Mass. 296, 6 N. E. R. 515; S. v. If the second marriage had been in Nodal, 69 Iowa, 478, 29 N. W. R. 451.] this state, inasmuch as it was illegal,

3 Crim. Pro., I, SS 104, 570, 571. the former wife being living and the * Ante, SS 598, 600.

lawful wife of the person charged, 5 Kopke v. P., 43 Mich. 41; S. v. the illegality of the second marriage Johnson, 12 Minn. 476, (93 Am. D. would have been apparent, and the 241.] See Com. v. Richardson, 126 court could have judicially recog. Mass. 34, (30 Am. R. 647.]

nized its illegality.” Page 573. The 6 Ante, S 588.

answer to this view is, that if the po?S. v. Palmer, 18 Vt. 570. Will- lygamous marriage was lawful in iams, C. J., said: “The second mar. New Hampshire, it would not be so riage being in the state of New in Vermont; for the courts of no Hampshire, of whose laws we cannot Christian nation would accept as judicially take notice, the respond- good a foreign polygamous marriage, ent committed no offense against the though it was valid at the place of laws of this state by such marriage; its celebration. 1 Bishop, Mar., Div. and, unless that marriage was un- & S., SS 860, 861. Again, by the doclawful by the laws of New Hamp- trine commonly received, the Vershire, Jane Cheney became his law- mont court would presume polygamy ful wife, and perhaps the woman to not allowable in New Hampshire. whom he was formerly married, by Id., SS 411-418. the same law, ceased to be his wife. 8 S. v. Johnson, 12 Minn. 476. It could be no offense in him to co

The true view, to which, perhaps, an examination of the cases will show them not to be adverse, is that in some way the second marriage must appear to be unlawful. But if a first marriage is charged, and then a second while the first subsists, the latter is invalid with us, and the case is brought within the statute, whether it was lawful or unlawful at the place of its celebration.

$ 604. Variance.— The marriage should not be alleged in a way to create a variance. Where the name of the second wife was given in the indictment as Elizabeth Chant, widow, and at the trial it appeared she was not a widow, the variance was held to be fatal; though without this descriptive word the averment would have been equally good.”

$ 604a. Forbidden marriage after divorce.- What is not polygamy should not be indicted as such. In some of our states a statute makes punishable the party who, after being divorced at the suit of the other, marries again." Still such person has ceased to be a husband or wife, and his marriage in violation

a of the inhibition is not polygamy, however the legislature may term it. The indictment against him should be drawn, not as for polygamy, but upon the special statutory provision.

$ 605. Negativing exceptions and provisos.— The rules for negativing exceptions and provisos in indictments on statutes are stated in “Criminal Procedure,”? and they need not be here repeated. Now,

$ 606. Continued.— Doubtless, within these rules, an indictment on a statute in the Indiana form 8 requires negatives. But one on the English and most of the American statutes does

11 Bishop, Mar., Div. & S., SS 860, 509.] See Baker v. P., 2 Hill (N. Y.), 861; Hyde v. Hyde, Law R. 1 P. & 325; [Niese v. Terr. (Okl.), 60 Pac. R. M. 130; ante, & 585.

300; P. v. Faber, 92 N. Y. 146, 44 Am. . Crim. Pro., I, SS 484a-488e; ante, R. 357. Such a decree has no extra$ 601; S. v. Armington, 25 Minn. 29; territorial force. P. v. Chase, 27 Hun, U. S. v. Miles, 2 Utah, 19; S. v. Will. 310.] iams, 20 Iowa, 98.

? Crim. Pro., I, S 631-642; (S. v. 3 Rex v. Deeley, 1 Moody, 303, 4 Gallagher, 20 R. L. 266, 38 Atl. R. 655; Car. & P. 579.

S. v, Jenkins, 139 Mo. 535, 41 S. W. 41 Bishop, Mar., Div. & S., $ 703. R. 220; S. v. Melton, 120 N. C. 591, 20

52 id., SS 1477-1480, and the places S. E. R. 933.] there referred to.

8 Ante, g 600. 6 Post, & 666; Com. v. Richardson, 9 Bicknell, Crim. Pr. 86, 483, refer126 Mass. 34, (30 Am. R. 647;] Com. ring to Brutton v. S., 4 Ind. 601. v. Lane, 113 Mass. 458, (18 Am. R.

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not, the matter of their exceptions and provisos being in the nature of defense. “If it is reasonable,” said Lord Denman,

" C. J., in England, “that the indictment should negative the dissolution of the marriage, it may as well be required that the prosecutor should deny that the statute was repealed.” ? And, in North Carolina, to charge that the first wife was alive at the time of the second marriage is adjudged sufficient; it need not be added that the first marriage was then subsisting. “All the precedents produced are so, except that of the Duchess of Kingston's Case.”'3

$ 607. Secondly. The evidence:

Burden of proof.- In a sense explained in another connection, the burden of proof is on the prosecuting power to establish every particular of its accusation. But this proposition complicates itself with the doctrine of presumptions. Further as to which,

Alive.— The state must satisfy the jury beyond a reasonable doubt, either by direct evidence or through the aid of presumptions, that, at the time of the second marriage, the first husband or wife was alive. Something as to the presumptions under this head we shall see further on.

Seven years' absence and knowledge thereof.— When the state has thus shown that, at the time of the second marriage, the first wife, for example, was alive, the defendant may rebut this prima facie case by proof of her seven years' absence. Then, if the state contends that, nevertheless, he knew her to be alive within this period, it must prove his knowledge; he is not required negatively to establish his want thereof.And the jury are to determine, under all the evidence, what the real fact as to his knowledge was.'

1 Crim. Pro., I, 8 638; S. v. Abbey, 5 Reg. v. Lumley, Law R. 1 C. C. 29 Vt. 60, [67 Am. D. 754;) S. v. Will. 196, 198; Squire v. S., 46 Ind. 459; iams, 20 Iowa, 98; Com. v. Whaley, Hull v. S., 7 Tex. Ap. 593; (Parker v. 6 Bush, 266; S. v. Johnson, 12 Minn. S., 77 Ala. 471, 54 Am. R. 43.] 476, [93 Am. D. 241;] Stanglein v. S., 6 Post, $ 611. 17 Obio St. 453; Fleming v. P., 27 7 Hull v. S., 7 Tex. Ap. 593, 594. N. Y. 329; Com. v. Jennings, 121 Mass. 8 Reg. v. Heaton, 3 Fost. & F. 819; 47, [23 Am. R. 249;] Kopke v. P., 43 Reg. v. Ellis, 1 Fost. & F. 309; Reg. v. Mich. 41; Barber v. S., 50 Md. 161. Curgenwen, 10 Cox, C. C. 152; S. C.

2 Murray v. Reg., 7 Q. B. 700, 706. nom. Reg. v. Curgerwen, Law R. 1 38. v. Norman, 2 Dev. 222.

C. C. 1; [P. v. Meyer, 8 N. Y. St. R. 256.] 4 Crim. Pro., I, SS 1048-1051.

9 Reg. v. Cross, 1 Fost. & F. 510;

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