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tinuance would come in conflict with that of the defendant's innocence, and, other things being equal, the latter should be preferred. If the second marriage and the life of the first matrimonial partner were shown to be very near together,-as, for example, if the former were within a month or two of the latter,— the jury would be quite justified in finding that the life was continuing; but not, in the absence of special circumstances, if the period was two years, and there might not improperly be an acquittal where it was no more than one year. Still this question will depend much on the varying circumstances of cases; it is purely of fact for the jury, yet of a sort particularly open to be supervised by the court, and new trials granted when they appear from the verdict to have proceeded on misapprehension.
§ 612. Proof of second marriage.- No special difficulties attend the proof of the second marriage. It, only, and not also cohabitation under it, is required to be shown; for, without cohabitation, the crime is complete. What is above said of proving the first marriage, together with some elucidations under our first sub-title, will suffice for the second, except as to the
§ 613. Injured parties as witnesses. The first, or true, husband or wife cannot, for familiar reasons, be a witness, unless by force of some authorizing statute. And “this rule," says Leach, one of the editors of Hawkins," has been so strictly taken that even an affidavit to postpone the trial, made by the first wife, has been rejected.”? Nor does the defending husband's consent render her competent. Under the commonlaw rules she cannot, as in assault and battery by the husband on her, be a witness by reason of her personal protection re
1 Bishop, Mar., Div. & S., and the 461, 10 S. E. R. 1087, 20 Am. St. R. 377; cases, supra.
Com. v. Lucas, 158 Mass. 81, 32 N. E. R. 2 Squire v. S., supra. And see Gor- 1033; Cox v. S., 117 Ala. 104, 23 S. R. man v. S., supra; [Com. v. McGrath, 806, 41 L. R. A. 760; P. v. Menden. 140 Mass. 296, 6 N. E. R. 515; Com. v. hall (Mich.), 78 N. W. R. 325; S. v. Caponi, 155 Mass. 30 N. E. R. 82.] Nadal, 69 Iowa, 478, 29 N. W. R. 451.]
3 See the elucidations in 1 Bishop, 5 Ante, SS 586, 588, 590-593. (See Mar., Div. & S., SS 949-955, and par. Johnson v. S., 60 Ark, 308, 30 S. W. ticularly $953.
R. 31.) 4 Gise v. Com., 81 Pa. St. 428; Beggs 6 Crim. Pro., I, SS 1151-1155. v. S., 55 Ala. 108; Scroggins v. S., 32 71 Hawk. P. C. (Curw. ed.) 687, § 8. Ark. 205; S. v. Patterson, 2 Ire. 346, 8 Wilson v. Hill, 2 Beasley, 143. (38 Am. D. 699; Nelms v. S., 84 Ga. 9 Crim. Pro., L $ 1153; II, S 69.
quiring it. But under a statute permitting the husband or wife to testify against the other in a criminal proceeding for a crime by one against the other, she has been adjudged com. petent. Nor, at common law, can she be a witness to prove her marriage void; ; or, a fortiori, good.' But a mere de facto wife, not lawfully married, is always a good witness. Hence, for most purposes in these cases, the second, or de facto, hus. band or wife may be called. But such a witness, whose marriage de facto is conceded, cannot testify to the nullity of the contested first marriage; for the result of the evidence would be, and it could be only, to establish its own inadmissibility. Whence also it results that such party cannot be admitted as a witness to testify the other way; that is, in favor of the marriage. For a witness is sworn to speak the truth, whatever it may be. Therefore, alike in reason, and in the language of Woods, J., in the supreme court of the United States, as "the result of the authorities, ... as long as the fact of the first marriage is contested, the second wife cannot be admitted to prove it. When the first marriage is duly established by other evidence to the satisfaction of the court, she may be admitted to prove the second marriage, but not the first.”? It is perceived, therefore, that on this issue, differing from the ordinary case in which a tendered witness is objected to as being the husband or wife of one of the parties, the course of the hearing seems, in some degree, to supply the place of the preliminary examination by the court as to his competency; hence there may be apparent differences in the rules as to admitting the witness.
1 S. v. McDavid, 15 La. An. 403. 8 Crim. Pro., I, $ 1154; S. v. Brown,
2 S. v. Sloan, 55 Iowa, 217, 219, 220. 28 La. An. 279; (Reg. v. Ayley, 15. See S. v. Nash, 10 Iowa, 81. Compare Cox, C. C. 328.) with P. v. Houghton, 24 Hun, 501,) 61 Hawk, P. C. (Curw. ed.), S 8; S. and Kelly v. Drew, 12 Allen, 107, [90 v. McDavid, 15 La. An. 403; S. v. PatAm. D. 138.)
terson, 2 Ire. 346, (38 Am. D. 699;) 3 Reg. v. Madden, 14 U. C. Q. B. Johnson v. S., 61 Ga. 305; Furney v. 588, 591; Peat's Case, 2 Lewin, 111. S., 3 Head, 544. And see Peat's Case, 2 Lewin, 288. 7 Miles v. U. S., 103 U. S. 304, 315.
4 Williams v. S., 44 Ala. 24; Griggs' 8 As, for example, in Wakefield's Case, T. Raym. 1. See Broughton v. Case, 2 Lewin, 279; Walter v. P., 33 Harpur, 2 Ld. Raym. 752; Redgrave N. Y. 147; Kelly v. Drew, 12 Allen, v. Redgrave, 38 Md. 93; 8. v. Brown, 107; Reg. v. Young, 5 Cox, C. C. 296.. 67 N. C. 470.
THE FORCIBLE ABDUCTION OF WOMEN.
S 614, 615. Introduction.
616-621. Law of the offense.
$ 614. Abduction—Seduction—(Distinctions).—The wrong meant by the word "abduction,” without the adjective, “may either be by fraud and persuasion, or open violence.” Hence, with entire propriety, some of the English authors treat, under the title Abduction, of the offenses included both in this chapter and the next.? We, in this country, have little to do with forcible abduction, as an offense distinct from kidnaping; so, for convenience, the preliminary explanations relating to it are placed in this chapter by themselves.
$ 615. How chapter divided. - We shall consider, I. The law of the offense; II. The procedure.
$ 616. Old English statutes.-By 3 Hen. 7, ch.2, A. D. 1486,9 it was recited “that women as well maidens as widows and wives, having substances, etc.— have, for the lucre of such substances, been oftentimes taken by misdoers, contrary to their will, and after married to such misdoers, or to others by their assent, or defiled.” Thereupon it enacted" that what person or persons from henceforth that taketh any woman so against her will unlawfully,- that is to say, maid, widow or wife,that such taking, procuring and abetting to the same, and also receiving wittingly the same woman so taken against her will, and knowing the same, be felony,” etc. And 39 Eliz., ch. 9,
13 Bl. Com. 139.
tion." 1 Hawk. P. C. (Curw. ed.) 2 Archb. Crim. PL. & Ev.(19th Lond. 125-138. ed.) 756–761; 1 Russ. Crimes (5th ed.), 3 For this statute, and expositions 883–898. The late editions of Haw. thereon, see 1 Hawk. P. C. (Curw. ed.), kins have the separate title “Seduc- p. 123 et seq. And see Crim. Law, I,
deprived the principals and procurers of clergy. The substance of this statute, with some alterations, is now comprised in 24 and 25 Vict., ch. 100, $ 53.
$ 617. Interpretations.— The word “so,” in the body of the above statute, was construed to make the preceding recitation a part of it. The taking must be for lucre,' and the woman must either be an heir apparent or have property. Also force must be used, either at the taking or at the marriage or defilement, but not necessarily at both. Both the force and the marriage or defilement must occur in the county of the indictment;& the mere taking there, without one or the other of these, not sufficing? Yet, within this distinction, a force begun in one county may be continuing in another, where the marriage or defilement transpires, and therefore sufficient. When the offense has been thus completed, it will not be purged by a subsequent consent of the woman.' Her receivers are principals; those who receive the takers of her are only accessories after the fact.10
$ 618. Whether common law with us.- As to whether this statute is common law in our states, we have no decisions." The Pennsylvania judges, in their report of English statutes in force, do not include this one; 12 and Kilty mentions it among the acts not found applicable in Maryland. As an abstract
1 Baker's Case, 12 Co. 100.
13 Kilty, Rep. of Stat. 67. He says: 2 Bruton v. Morris, Hob. 182, 183; “This offense was generally known Case of Stealing Women, 12 Co. 20. in England under the term of steal.
34 Bl. Com. 208. And see Reg. v. ing an heiress. The statute must be Barratt, 9 Car. & P. 387.
considered in connection with 39 4 Baker's Case, 12 Co. 100; 1 Hawk. Eliz., ch. 9, which took away the benP. C. (Curw. ed.), p. 124, § 4.
efit of clergy. The question as to the 34 BL. Com. 208, 209.
extension of these statutes, if consid61 Stark. Crim. Plead. (2d ed.) 2; 1 ered independent of what is to be in. East, P. C. 453; Fulwood's Case, Cro. ferred from the records of the courts, Car. 488.
would be open to considerable doubt; 7 Baker's Case, 12 Co. 100; Case of for, although the felony was created Stealing Women, 12 Co. 20.
and made more penal by acts of par8 Fulwood's Case, Cro. Car. 488. liament, yet they were enacted long
9 Reg. v. Swanson, 7 Mod. 101, 102. before the settlement of the prov. And see Crim. Law, I, S 733.
ince, and, although the provisions 10 Baker's Case, 12 Co. 100; Case of are highly penal, the offense may be Stealing Women, 12 Co. 20.
viewed as one of a heinous nature, 11 Crim. Law, I, $ 555.
and as being liable to be perpetrated 12 Report of Judges, 3 Binn. Ap. 595, in this country as well as in England. 617.
But I have not been able to discover
question, this statute was as applicable to our colonies as to the mother country. But because of the poverty of the early settlers there was no temptation to commit the offense, and the occasion for its enforcement could not arise. This sort of want of occasion is not generally deemed to exclude from our law a provision of the English. Still, on the whole, the chances of inducing a court to accept this enactment as a part of our law would be problematical.
$ 619. Aside from this statute,- this offense may, where sufficient force is employed, amount to common-law kidnaping; or, if not technically such, to false imprisonment, or other analogous misdemeanor. And an unsuccessful attempt to commit it is indictable. Thus, an English case lays it down, that attempting to carry away forcibly a woman of great fortune is a great misdemeanor at the common law; for “sure,” says Lord Holt,“this concerns all the people in England who would dispose of their children well.” 2
$ 620, At present in England,- this whole ground is so covered by statutes as to leave little occasion for resort to the unwritten law.
§ 621. With us,- it is so to a slight extent; so slight that whatever of written law we have relating to it will be considered in our next chapter.
II. THE PROCEDURE.
$ 622, Indictment. The indictment, to follow in substance Chitty's exposition,' sets forth that the woman had lands, or goods, or was heir apparent; and was married or defiled. And it avers the place and manner of the taking;ó also that it was
any instance of a prosecution under 2 Rex v. Pigot, Holt, 758. these statutes, either in the province 3 Stat. 24 & 25 Vict., ch. 100, SS 53or in the state, and the most certain 55; ch. 95, repealing prior statutes. conclusion seems to be that they See Greaves, Crim. Law Acts, 78; were not in force therein. There Reg. v. Burrell, Leigh & C. 354; Reg. were some cases of prosecutions un- v. Timmins, Bell, C. C. 276. der the statute 4 and 5 Phil. & M., 43 Chit. Crim. Law, 818, note. And ch. 8 (considered under the title Se- see Reg. v. Swendsen, 14 How. St. Tr. duction, post, SS 627, 628], for what is 559; Reg. v. Bayton, 14 How. St. Tr. termed an inferior degree of the 597. same kind of offense."
6 Fulwood's Case, Cro. Car. 484. 1 Crim. Law, I, $ 555; II, SS 746– 751