CHAPTER IX.

BIGAMY, ADULTERY, AND FORNICATION.(a)

[So far as these offences approach open lewdness and lasciviousness, they are examined supra, 705–776, where the general principles applying to them as such are considered.]

(985) Bigamy under English statute.

POLYGAMY, BIGAMY, INCEST, ETC.

(986) Polygamy in Massachusetts.

(986a) Another form.

(987) For polygamy, by continuing to cohabit with a second wife in Massachusetts. Rev. Sts. of Mass. ch. 130, § 2.

(988) Bigamy in New York.

(989) Bigamy in Pennsylvania, against the man.

(990) Bigamy in Pennsylvania, against the woman.

(991) Bigamy. Where the first marriage took place in Virginia, under the

Ohio statute.

(992) Bigamy. Where the first marriage took place in another county of Ohio.

(993) Bigamy in North Carolina.

(994) Polygamy under §§ 5, 6, ch. 96, Rev. Sts. Vermont, where both marriages were in other states than that in which the offence is indicted.

(995) Adultery in Massachusetts, under Rev. Sts. ch. 130, 1, against both

parties jointly.

(996) Adultery by a married man with a married woman, in Massachusetts. (997) Adultery in Pennsylvania against the man.

(998) Same against the woman.

(999) Living in a state of adultery, under Ohio statute. A married woman

deserting her husband, etc.

(1000) Against an uncle and niece for an incestuous marriage, as a joint

offence, in Virginia.

(1001) Adultery in North Carolina, against both parties jointly.

(1002) Fornication and bastardy in South Carolina, against the man.

(1003) Same in Pennsylvania.

(1004) Same against a woman.

(a) See Wh. Cr. L. 8th ed. § 1683 et seq.

(985) Bigamy under English statute.(b)

That J. S., on, etc., at, etc., did marry one A. C., spinster, and her the said A. then and there had for his wife, and that the said J. S. afterwards, and whilst he was so married to the said A. as aforesaid, to wit, on, etc., at, etc., feloniously and unlawfully did marry and take to wife one M. Y., and to her the said M. was then and there married, the said A., his former wife, being then alive;(c) against, etc. And the jurors aforesaid, on their oath aforesaid, do further present, (c') that the said J. S., after

(b) Arch. C. P. 19th ed. p. 948. This last clause is essential under the statute. 1 Russ. C. & M. by Greeves, 4th ed. 274; R. v. Soluley, 1 C. & R. 150.

(c) This is adequate. Murray v. R., 7 Q. B. 700. A variance as to the second wife's name is fatal, it being necessary to individuate her, in order to determine the offence. R. v. Seeley, 4 C. & P. 579; 1 Mood. C. C. 303; Hutchins e. State, 28 Ind. 34; Com. v. Whaley, 6 Bush, 266; State v. Loftin, 2 Dev. & Bat. 31. But the weight of authority is that it is not necessary to set forth the name of the first wife. And if we follow the analogy of indictments for receiving stolen goods, we should hold that the more general statement is enough. If we are forced to state in detail the marital relations of the parties, it would be necessary to go still further, and aver that the first wife or husband of the defendant was capable of consenting to marriage, and was not bound by other matrimonial ties. As, however, the first marriage in all its relations is simply matter of inducement, it is enough to state it in general terms, without specifying the details. If these are needed for justice, they can be supplied by a bill of particulars. Contra, State v. La Bore, 26 Vt. 265. Where, however, the details of the first marriage are given, a variance in the name is fatal. R. v. Gooding, C. & M. 297. The exceptions in the statute, when not part of the description of the offence, need not be negatived. Murray . R., 7 Q. B. 700; State v. Abbey, 29 Vt. 60; Com. v. Jennings, 121 Mass. 50; Fleming v. People, 27 N. Y. 399; Stanglein v. State, 17 Oh. Stat. 453; State v. Williams, 20 Iowa, 98; State v. Johnson, 12 Minn. 476; State v. Loftin, 2 Dev. & Bat. 31. It is otherwise where the exception describes the offence in the enacting clause. Fleming v. People, 27 N. Y. 329. Nor is it necessary to allege that the defendant knew at the time of his second marriage that his former wife was then living, or that she was not beyond seas, or to deny her continuous absence for seven years prior to the second marriage. Barber v. State, S. C. Md. 1879, citing Bode v. State, 7 Gill, 316.

Where an indictment, under the Massachusetts statute, alleged that the defendant, on a certain day, was lawfully married to A.; and that afterwards, on a certain day, he "did unlawfully marry and take to his wife one B., he, the defendant, then and there being married and the lawful husband of the said A., she, the said A., being his lawful wife, and living, and he, the said defendant, never having been legally divorced from the said A. ;" and it was proved that the defendant was lawfully married to A.; that afterwards she was duly divorced from him for misconduct on his part; and that he then married B.; it was ruled, that there was a variance between the allegations and the proof. Com. v. Richardson, 126 Mass. 34.

(c') By the English act, the county where the offender is apprehended or is in custody, has jurisdiction of the offence, and this is the cause of the averments to that effect in the text; which of course can be discharged as surplusage in this country, where no such provision as to venire exists.

wards, to wit, on, etc., at, etc. (stating place of arrest), within the jurisdiction of the said court, was apprehended for the felony aforesaid. (Conclude as in book 1, chapter 3.)

(986) Polygamy in Massachusetts.(d)

That M. M., of, etc., wife of one P. M., the younger of that name, at, etc., on, etc., she being then a single woman unmarried, by the name of M. D., was lawfully married, according to the laws of said commonwealth, to said P. M., the younger of that name, and him then and there had and took for her husband, and cohabited with him as his lawful wife, and that afterwards she the said M., on, etc., at, etc., did unlawfully marry and take to her husband one W. M. B., she the said M. then and there being married and the lawful wife of said P. M., he the said P. M. then being her former husband and living, she the said M. never having been legally divorced from the bonds of matrimony from the said P. M. ; and that afterwards, to wit, hitherto, at, etc., she the said M., after having married said W. M. B., continued to cohabit with said W. M. B., as her second husband, in this state, to wit, at, etc., whereby and by force of the statute in such case made and provided, she the said M. is deemed to be guilty of the crime of polygamy; and so the jurors aforesaid, on their oath aforesaid, do present and say, that said M. M., in manner and form aforesaid, and at the time and place aforesaid, at, etc., did commit the crime of polygamy, against, etc., and contrary, etc. (Conclude as in book 1, chapter 3.)

(986a) Polygamy in Mass. under Rev. Stat. ch. 165.

That "W. H. J., of N., in the county of H., on, etc., at, etc., he, the said W. II. J., being then and there a single man unmarried, was lawfully married to one A. G., and her, the said A. G., then and there had and took for his the said W. H. J.'s lawful wife, and that afterwards, he, the said W. H. J., on, etc., at, etc., did unlawfully marry and take to his wife one H. J., he,

(d) See Com. v. Mash, 7 Metc. 472, where this count was held good. In this case it was held, that under the Rev. Sts. ch. 130, § 2, if a woman who has a husband living marry another person, she is punishable, though her husband has voluntarily withdrawn from her, and remained absent and unheard of, for any term of time less than seven years, and though she honestly believes, at the time of her second marriage, that he is dead.

the said W. H. J., being then and there married and the lawful husband of the said A. G., she the said A. G, then being his former wife and then living, and he, the said W. H. J., never having been lawfully divorced from the said A. G.; and that the said W. H. J. afterwards did cohabit with the said H. J., his second wife, in this state, to wit, at N., in the said county of H., for a long space of time, to wit, for the space of six months; whereby, and by force of the statute in such case made and provided, he, the said W. H. J., is deemed guilty of the crime of polygamy. And so the jurors aforesaid, upon their oath aforesaid, present, that said W. H. J., in manner and form aforesaid, at, etc., on, etc., did commit the crime of polygamy; against the peace," etc.(e) (Conclude as in book 1, chapter 3.)

(987) For polygamy, by continuing to cohabit with a second wife in Massachussetts. Rev. Stat. of Mass. ch. 130, § 2.(ƒ)

at

The jurors, etc., upon their oath present, that C. D., late of, etc., on the first day of June, in the year of our Lord B., in the county of S., was lawfully married to one A. B., and the said A. B. then and there had and took for his lawful wife, and that afterwards, to wit, on the first day of July, in the year of our Lord at B., in the county of S., the said C. D. feloniously and unlawfully did marry and take to wife one E. F., the said C. D. then and there being married and the lawful husband of the said A. B., the said A. B. then being his former wife and living, and the said C. D. never having been legally divorced from the said A. B.; and that the said C. D. afterwards did cohabit, and continue to cohabit, with the said E. F., as his second wife in this state, to wit, at B., in the county of S., and commonwealth aforesaid, for a long space of time, to wit, for the space of six months; and (here proceed to negative the excepted cases in the following section). Whereby, and by force of the statute in such case made and provided, the said C. D. is deemed

(e) The above indictment was sustained in Com. v. Jenning, 121 Mass. 47, under Gen. Stat. c. 165, § 4, which enacts that "whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this state, shall (except in the cases mentioned in the following section) be deemed guilty of polygamy." It was held that the excep tion, stated in § 5, of a person whose husband or wife has been absent for seven years, and not known to be living, need not be negatived.

(f) Tr. & H. Prec. 440.

guilty of the crime of polygamy. And so the jurors aforesaid, on their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, at, etc., on, etc., did commit the crime of polygamy; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.

(988) Bigamy in New York.

That A. B., late of, etc., yeoman, on, etc., did marry one C. D., and her the said C. D. did then and there have for his wife; and that the said A. B. afterwards, to wit, on, etc., with force and arms, feloniously did marry and take as his wife one E. F., and to the said E. F. was then and there married (the said C. D. being then and there living, and in full life), against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(989) Bigamy in Pennsylvania, against the man.(g)

That J. L., late, etc., yeoman, on, etc., at, etc., did marry one M. F., spinster, and her the said M. F. then and there had for his wife, and that the said J. L. afterwards, to wit, on, etc., with force and arms, etc., at, etc., feloniously did marry and to wife did take one E. R., spinster, and to her the said E. R. theu and there was married (the said M. F. his former wife being then living, and in full life), against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(990) Bigamy in Pennsylvania, against the woman.(h)

That H. S., otherwise called H. I., the wife of E. I., late of, etc., yeoman, on, etc., being then married, and then the wife of the said E. I., with force and arms, at, etc., did unlawfully marry and take to husband one D. K., late of, etc., yeoman, and him the said D. K. did unlawfully receive and have as her husband aforesaid, the said E. I., her former husband, being then alive, contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(g) Drawn in 1795, by Mr. Jared Ingersoll, then attorney-general of Pennsylvania.

(h) Drawn in 1790, by Mr. Bradford, then attorney-general of Pennsylvania. 556