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$ 596b. Further of intent. To constitute this crime, an intent to do what the law forbids is necessary, but no other evil the judges in banc, though they not feigned; and whether it is honknew that other judges were of est or feigned the jury must deteropinion contrary to their own. A mine, in view of all the evidence. frame of mind like this is not judi. Whether there was fault or careless cial. In Massachusetts a woman was ness in acquiring knowledge of the adjudged a polygamist for marrying facts is also a matter for their de. when her husband, who had been termination. No man can be acquitabsent less than seven years, was be ted of responsibility for a wrongful lieved to be dead. Com. v. Mash, 7 act unless he employs the means at Met. 472. As to which case see also command to inform himself.' Notem. Crim. Law, I, S 303a, note, par. 13–16. ploying such means, though he may But this sort of doctrine appears not be mistaken, he must bear the conto prevail to any considerable extent sequences of his negligence. If he in our other states. And see the relies on information obtained from note in Crim. Law, supra, and spe others, he should have some just reacially, on this question, Dotson v. S.,62 son to believe that from them he Ala. 141, [34 Am. R. 2;] Squire v. S., could obtain information on which 46 Ind. 459; Arnold v. S., 53 Ga. 574; he may safely rely. It does not ap[Reynolds v. S. (Neb.), 78 N. W. R. pear (in the case before the court) 483; Com. v. Hayden, 163 Mass. 453, that the persons informing the ap40 N. E. R. 846, 47 Am. St. R. 468, 28 pellant of the death of his first wife L. R. A. 318.] In Dotson v. S., Brick. had any opportunities of knowing ell, C. J., states the question with the fact he did not have; nor on great precision, as follows: “The rule what their knowledge of the fact was of the common law, of very general based. Nor was it shown that he application, is that there can be no made inquiries of persons who, from crime when the criminal mind or in. their relationship or acquaintance tent is wanting. When that is de with the wife, would have known pendent on a knowledge of particu- whether she was living or dead. Big. lar facts, ignorance or mistake as to amy is a violation of positive law, these facts, honest and real, not su- disturbs the peace of families, ofperinduced by the fault or negligence fends the good order of society, and of the party doing the wrongful act, involves the legitimacy of children, absolves from criminal responsibility. the descent and succession to estates. Gordon v. S., 52 Ala. 308, [23 Am. R. A degree of diligence commensurate 575;] Squire v. S., 46 Ind. 459. The prin- with the importance of the actciple is thus stated by Bishop: ‘The a second marriage, having had a wrongful intent being of the essence former wife, not so long absent and of every crime, the doctrine neces- unheard of that the law presumed sarily follows that, whenever a man her death – the appellant should is misled without his own fault or have exercised.” P. 144. So, plainly, carelessness, concerning facts, and, a mere absence, continued for a less while so misled, acts as he would be time than the statute prescribes, justified in doing were the facts as could never afford justification, ache believes them to be, he is legally ceptable to the law, for the belief, innocent, the same as he is innocent however sincere, that death had morally.' 1 Bishop, Crim. Law, S 303. taken place. Such belief, being made The belief must be honest and real, by the statute illegal, would be void.
intent is.' And as a part of the rule, every person is conclusively presumed to know the law, 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.4
$ 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 R. 214, 22 S. W. R. 684, 40 Am. St. R. facts and circumstances is of a dif- 774; S. v. Sherwood, 68 Vt. 414, 35 ferent character. As to this, the Atl. R. 352.] statute is silent, and hence the rules 2 Crim. Law, I, SS 294-300; Davis v. of the common law must be the Com., 13 Bush, 318. guide.
3 Crim. Law, I, SS 301-309. 1 Dotson v. S., 62 Ala. 141, [34 Am. 4 Id., I, SS 309, 344, 345; Reynolds v. R. 2. It is no defense that defend. U. S., 98 U. S. 145; U. 8. v. Reynolds, ant believed or was advised that an 1 Utah, 226. And see U. S. v. Miles, agreement with his wife to live sep. 2 Utah, 19; Miles v. U. S., 103 U. S. arate annulled the marriage. S. v. 304. Zichfeld, 23 Nev. 304, 46 Pac. R. 802, 5 Ante, $ 595. 62 Am. St. R. 800, 34 L. R. A. 784; P. 6 See the adultery case of Com. v. v. Weed, 29 Hun, 628; 8. C., 96 N. Y. Thompson, 11 Allen, 23, (87 Am. D. 625; S. v. Hughes, 58 Iowa, 165, 11 N. 685.) W. R. 706; Medrano v. S., 32 Tex. Cr. 7 Com. v. Smith, Oyer and Ter
[S 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.57
II. THE PROCEDURE.
$ 598. 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 R. 751; U. S. v. Harris, 5 Utah, 436, 7 Rush, President (pamphlet, p. 229), Pac. R. 75.] 1 Whart. Dig. (6th ed.) 1177.
*[Ex parte Snow, 120 U. S. 274, 7 1 [Cannon v. U. S., 116 U. S. 55, 6 S. Ct. 556, 30 L ed. 658. But see S. Ct. 278, 29 L. ed. 561; U. S. v. Mus. U. S. v. Eldredge, 5 Utah, 161, 13 Pac. ser, 4 Utah, 153, 7 Pac. R. 389; U. S. R. 673; also 5 Utah, 189, 14 Pac. R. 42.] v. Smith, 5 Utah, 232, 14 Pac. R. 291; 5[U. S. v. Tenney (Ariz.), 8 Pac. R. also 5 Utah, 273, 15 Pac. R. 1.) 295; U. S. v. Tenney (Ariz.), 11 Pac.
2 [U. S. v. Peay, 5 Utah, 263, 14 Pac. R. 472; U. S. v. Simpson, 4 Utah, 227, R. 342. See U. S. v. Clark, 6 Utah, 7 Pac. R. 257.] 120, 21 Pac. R. 463, and U. S. v. Lang- 6[As to the indictment under ford, 2 Idaho, 519, 21 Pac. R. 409.] the Edmunds-Tucker Act (see ante,
3 [U. S. v. Snow, 4 Utah, 280, 9 Pac. $ 597a), see U. S. v. Tenney (Ariz), R. 501; U. S. v. Higgerson, 46 Fed. 11 Pac. R. 472; U. S. v. Tenney (Ariz),
English.— On the before-recited enactment of 9 Geo. 4, ch.31, $ 22,' 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 bis 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.?
$ 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,–
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.
$ 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. Now,
8 Pac. R. 295; U. S. v. Kuntze, 2 241); Williams v. S., 44 Ala. 24; Com. Idaho, 446, 21 Pac. R. 407. Failure v. Bradley, 2 Cush. 553; Com. v. Godto allege that defendant is a male is soe, 105 Mass. 464. not a fatal defect. Cannon v. U. S., * Rex v. Fraser, 1 Moody, 407. 116 U. S. 55, 6 S. Ct. 298, 29 L. ed. 6 Reg. v. Whiley, 2 Moody, 186. 561; U. S. v. Musser, 4 Utah, 153,7 And see Crim. Pro., I, 8 62, note. Pac. R. 389. As to joinder of counts, 6 Bicknell, Crim. Pr. 483, referring, see U. S. v. Groesbeck, 4 Utah, 487, for the statute, to Felony Act, & 46, 11 Pac. R. 542.)
2 G. & H. 452; for correctness of the 1 Ante, $ 581.
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.
424. [See S. v. Sherwood, 68 Vt. 414, 3 Davis v. Com., 13 Bush, 318; S. v. 35 Atl. R. 352.] Johnson, 12 Minn. 476, [93 Am. D.
$ 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." 6
1 See, among other places, 3 Chit. in full life: against the form of the Crim. Law, 718–722; Cro. C. C. (10th statute in that case provided, and ed. by Ryland), 97; Matthews, Crim. against the peace of our said soverLaw, 525; 5 Burn, Just. (28th ed.) 254; eign lord the king, his crown and Rex v. Edwards, Russ. & Ry. 283. dignity,” etc. The prisoner had no The oldest form I have seen is in the counsel, and no question was made very entertaining case of Mary Mod. as to the sufficiency of the indicters, who was indicted on Jac. 1, che ment. Rex v. Moders, 6 How. St. Tr. 11 (ante, $ 579), in 1663, and acquitted. 273. In the celebrated case of the It is as follows: "That she the said Duchess of Kingston, the indictment Mary Moders, late of London, Spin- in the first count simply charged that ster, otherwise Mary Stedman, the the defendant, “ being then married, wife of Tho. Stedman, late of the and then the wife of the said AuCity of Canterbury in the county of gustus John Harvey," did contract Kent, Shoemaker, May 12, in the the second marriage. But the secreign of his now majesty the sixth. ond count set out the first marriage at the Parish of St. Mildred's in the substantially as in the case of Mary City of Canterbury, in the county Moders. Rex v. Kingston, 20 How. aforesaid, did take to husband the St. Tr. 355, 371. aforesaid Thomas Stedman, and him 2 Reg. v. Gooding, Car. & M. 297. the said Thomas Stedman then and But see Collum v. S., 10 Tex. Ap. 708. there had to husband. And that she 33 Chit. Crim. Law, 719, note. the said Mary Moders, alias Stedman, 11 East, P. C. 469; (Hiler v. P., 156 April 21, in the 15th year of his said IIL. 511, 41 N. E. R. 181, 47 Am. St. R. majesty's reign, at London, in the 221; Pritchard v. P., 149 Ill. 50, 36 N. Parish of Great St. Bartholomew's, E. R. 103; Parker v. S., 77 Ala. 47, 54 in the ward of Farringdon without, Am. R. 43; McAfee v. S., 38 Tex. Cr. feloniously did take to husband one R. 124, 41 S. W. R. 627.] John Carleton, and to him was mar- 5 Stark. 62. ried, the said Tho. Stedman her for. 6 Stark, 434, note. mer husband being then alive, and