second marriage, since such second marriage is void, the second wife or husband is admissible as a witness either for or against the prisoner to prove the second marriage or any other fact material to the issue, except a fact showing the first marriage was void, or that the first wife or husband was dead at the time of the second marriage.1 But the first wife or husband is not admissible as a witness for any purpose. The mere presumption of the continuance of life is not sufficient to show that the first husband or wife was living at the time of the second marriage, without the aid of other circumstances, though five years has not elapsed since the last intelligence was had in regard to the absent person. But a letter received from abroad in her or his hand-writing is evidence of the party being alive at the time the letter appears to have been written. The marrying a second time during the life of the first husband or wife is punishable, though the former partner has voluntarily withdrawn and remained absent and unheard of for any term of time less than the period limited by the statute, though the person offending honestly believed at the time of the second marriage that the first husband or wife was dead."

$633. Defense. The accused may show in his defense the continued absence of the former partner for the space of five years together, prior to the second marriage, and that he or she did not know the former husband or wife to be living within that time," that the first marriage was void by reason of consanquinity or otherwise, or that he had been divorced by lawful authority. It has been held in another state in a civil action, that a divorce procured by the husband

1 Barb. Cr. L., 214; 3 Greenl, Ev., § 206; State v. Patterson, 2 Ired., 346. 22 Arch, C. P. & Pl., 1029.

'Rex v. Twyning, 2 B. & Ald.. 386.

2 Arch. C. P. & Pl., 1029; Reed v. Noman, 8 Car. & P., 65 'Com. v. Marsh, 7 Met., 472; see Com. v. Hunt, 4 Cush., 49 R. S., 356, § 28; ante § 628; Reg v. Jones, 1 C. & M., 614.

'Conant v. Griffin, 48 Ills., 410; Madison's Case, 1 Hale P. C., 693; Shafer v. State, 20 Ohio, 1; People v. Mosher, 2 Park. Cr. R., 195; but see State . Palmer, 18 Vt., 570.

'R. S., 356, § 28, ante § 628.

in one state while the wife was living in another, without her being personally notified or apprised of the proceedings, was absolutely void.' If the rule is the same in criminal prosecutions, it would seem to follow that such a divorce is no defense to an indictment for bigamy. A divorce obtained after the second marriage from the first is no defense to an indictment for bigamy. When a divorce has been granted for the offense of one of the parties, probably the guilty party is "divorced by lawful authority" within the meaning of the statute so that such party can marry again without being guilty of bigamy or adultery, though such person may truthfully be said to have a former husband or wife living."

4. CIRCULATING OBSCENE BOOKS, ETC.

$634. Provisions of the Statute. "Whoever brings, or causes to be brought into this state, for sale or exhibition, or shall sell or offer to sell, or shall give away or offer to give away, or have in his possession, with or without intent to sell or give away, any obscene and indecent book, pamphlet, paper, drawing, lithograph, engraving, daguerreotype, photograph, stereoscopic picture, model cast, instrument, or article of indecent or immoral use, or shall advertise the same for sale, or write or cause to be written, or print or cause to be printed, any circular, hand-bill, card, book, pamphlet, advertisement, or notice of any kind, or shall give information orally, stating when, how, or of whom, or by what means any of the said indecent and obscene articles and things herein before mentioned can be purchased or otherwise obtained, or shall manufacture, draw and expose, or draw with intent to sell or

1 Borden. Finch, 15 John., 121; Bradshaw v. Heath, 13 Wen., 407; Pawling . Bird, 13 John., 192; Dows v. Cobb, 12 Barb., 640; Hanover v. Turner, 14 Mass., 227; see also Brineler v. Dawson, 4 Scam., 541; Welch v. Sykes, 3 Gilm., 199; Thompson v. Emmet, 15 Ills., 415; Sim v. Frank, 25 Ills., 125.

23 Chitty Cr. L., 718, n. d.

Baker v. People, 2 Hill, 325.

'People v. Hovey, 5 Barb., 117; Com. v. Putnam, 1 Pick., 36; State v. Weatherby, 43 Me., 258.

to have sold, or print any such articles, shall be confined in the county jail not more than six months, or be fined not less than one hundred nor more than one thousand dollars for each offense-one-half of the said fine to be paid to the informer, upon whose evidence the person so offending shall be convicted, and one-half to the school fund of the county in which said conviction is obtained."

STATEMENT OF THE OFFENSE OF SELLING AN OBSCENE BOOK.

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, unlawfully did sell a certain obscene and indecent book, contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

5. CURRENCY UNAUTHORIZED.

§ 635. Issuing or Uttering." Whoever issues or passes any note, bill, order or check, other than foreign bills of exchange, the notes or bills of the United States, or of some bank incorporated by the laws of this state or of the United States, or of some one of the United States, or by the laws of either of the British provinces in North America, with intent that the same shall circulate as currency, shall be fined not less than one hundred nor more than one thousand dollars for each of- · fense, and shall not be permitted to collect any demand arising therefrom."2

STATEMENT OF THE OFFENSE OF ISSUING A NOTE INTENDED TO BE CIRCULATED AS CURRENCY.

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, unlawfully did issue and deliver to one E. F., a certain promissory note of the denomination of ten dollars, and for the payment of ten dollars by the said C. D., to the bearer on demand, with intent that the same should be circulated as currency, contrary to the form of the statute in such case made and provided (conclude as in the form on page 35).

R. S., 386, § 223, see ante § 301.

'R. S., 360, § 54.

6. GAMING HOUSES.

$636. Provisions of the Statute. "Whoever keeps a common gaming-house, or in any building, booth, yard, garden, boat or float, by him or his agent used and occupied, procures or permits any persons to frequent or come together to play for money or other valuable thing, at any game, or keeps or suffers to be kept any tables or other apparatus, for the purpose of playing at any game or sport, for money or any other valuable thing, or knowingly rents any such place for such purposes, shall upon conviction, for the first offense be fined not less than one hundred dollars, and for the second offense be fined not less than five hundred dollars, and be confined in the county jail not less than six months, and for the third offense shall be fined not less than five hundred dollars, and be imprisoned in the penitentiary not less than two years nor more than five years.'

STATEMENT OF THE OFFENSE OF KEEPING A COMMON GAMING HOUSE." (Commence as in form on page 35) that C. D., on the day of

3

A. D. 18-, and on divers other days and times, as well before as afterwards, at, etc., in said county,' unlawfully did keep a common gaming

1R. S., 371, § 127. Keeping of a gaming house was indictable at common law. Rex. v. Dixon, 10 Mod., 335; People v. Jackson, 3 Denio, 101; U. S. v. Dixon, 4 Crauch, C. C., 107; Com. v. Tilton, 8 Met., 232.

For other forms held sufficient, see State v. Maurer, 7 Iowa, 407; State v. Middleton, 11 Iowa, 246; State v. Cure, 11 Iowa, 479.

3

This is a continuing and indivisible offense, so that but one penalty can be assessed for keeping such house prior to the commencement of the prosecution. State v. Lindsley, 14 Ind., 430.

4

This is sufficiently certain as to the time. Stoltz v. People,4 Scam., 168; State v. Prescott, 33 N. H., 212. And it has been held to be sufficient to allege that the house was kept for a single day. State v. Crogan, 8 Iowa, 523; State v. Cure, 7 Iowa, 479.

It is sufficient to allege that the gaming house was kept in the county; yet if it is alleged that the building is situate on a particular lot, the proof must sustain the allegation. State v. Crogan, 8 Iowa, 523.

house,' there situate, then on the said days and times, occupied by the said C. D., and then on said days and times, and there in the said house, for his gain and profit, unlawfully did procure and permit divers persons' to frequent and come together to play for a certain valuable thing, to wit., (insert particular description of the thing") (or “for money") at the unlawful game of billiards,' and then, on the said days and times, and there the said C. D. did unlawfully procure and permit the said persons to remain

1 It has been said to be sufficient to allege that the defendant, on, etc., at etc., unlawfully did keep a common gaming house, without adding any. thing further, which is probably correct, so far as it relates to the first clause of our statute. Rex. v. Taylor, 3 B. & C., 502; Com. v. Pray, 13 Pick., 359; State v. Miller, 5 Blackf., 502; Rex. v. Dixon, 10 Mod., 335; Rex . Mason, 1 Leach, 487; 2 Hawks P. C. C., 25, § 57; and see Com. v. Crupper, 3 Dana, 466; Com. v. Stahl, 7 Allen, 304; contra, Vandeworker v. State, 13 Ark., 700, 701; People v. Jackson, 3 Denio, 101; 2 Whart. Cr. L., § 2446; 2 Bish. Cr. P., § 275. It will be sufficient to set out the offense in the language of the statute. State v. Kesslering, 12 Mo., 565; State v. Austin, 12 Mo., 576; State v. Price, 12 Gill & J., 260.

* An allegation that the defendant kept the gaming house is a sufficient allegation that he occupied it. Stoltz v. People, 4 Scam, 169.

The words "for his gain and profit," or "for his gain and lucre," or “for his gain,” are unnecessary, State v. Williams; 1 Vroom, 102; State v. Bertheol, 6 Blackf., 474; and therefore mere surplusage; State v. Bailey, 1 Fost. N. H., 343.

'It is not necessary to state the names of the persons who played. Green v. People, 21 Illinois, 125; State v. Prescott, 33 New Hampshire, 212; Carpenter v. State, 14 Ind., 109; Dormer v. State, 2 Ind., 308; Horan v. State, 24 Texas, 161; Com. v. Lampton, 4 Bibb, 461; State v. McBride, 8 Humph., 66. But there are authorities holding that the names of the players must be stated if known, and if not known it must be so alleged. Sowle v. State, 11 Ind., 492; Winnemiller v. State, 11 Ind., 516; Ball v. State, 11 Ind., 492; Davis v. State, 7 Ohio, 204; Butler v. State, 5 Blackf., 280.

It has been held that the particular thing played for must be stated, and that the words of the statute, "valuable thing," were not sufficiently certain. Anthony v. State, 4 Humph., 83; contra, Bagley v. State, 1 Humph., 486.

6 It is not necessary to state how much money was lost or who lost it. Montee . Com., 3 J. J., 132; Dean v. Tennessee, Mart. & Yerg., 127; State . McBride, 8 Humph., 66.

'It is not necessary to state the name of the game played. State v. Dole, 3 Blackf., 294; State v. Ake, 9 Texas, 322; Montee v. Com., 3 J. J. Marsh, 132; Dean v. Tennessee, Mart. & Yerg., 127; State v. McBride, 8 Humph., 66. It is necessary to allege by whose permission the gambling was done. An allegation that the defendant kept the house in which unlawful games were played, is not sufficient. Com. v. Crupper, 3 Dana, 466; contra, State v. Ellis, 4 Mo., 474.