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

That A. B., late of the county of Logan aforesaid, on the twenty-fourth day of August, in the year of our Lord one thousand seven hundred and ninety-six, at the county of Rockingham, in the state of Virginia, did marry one M. N., and her the said M. N. then and there had for his wife; and that the said A. B. afterwards, to wit, on the seventh day of July, in the year of our Lord one thousand eight hundred and thirty-seven, at the county of Logan aforesaid, in the state of Ohio, being then married to and the lawful husband of the said M. N., did unlawfully marry and take to wife one O. P., and to her the said O. P. was then and there married; the said M. N., his former wife, being then living and in full life. (Conclude as in book 1, chapter 3.)

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

That A. B., late of the county of Logan, in the state of Ohio, on the twenty-sixth day of September, in the year of our Lord one thousand eight hundred and forty-two, at the county of Greene, in the state of Ohio, did marry one M. N., and her the said M. N. then and there had for his wife, and that the said A. B. afterward, to wit, on the twelfth day of December, in the year of our Lord one thousand eight hundred and forty-three, at the county of Logan aforesaid, in the state of Ohio, being then married to and the lawful husband of the said M. N., did unlawfully marry and take to wife one C. D., and to her the said C. D. was then and there married, the said M. N., his former wife, being then still living and in full life. (Conclude as in book 1, chapter 3.)

(993) Bigamy in North Carolina.(k)

That T. N., late of, etc., on, etc., in, etc., did marry one M. B., spinster, and her the said M. B. then and there had for his wife, and that the said T. N. afterwards, to wit, on, etc., with force

(i) Warren's C. L. 332.

(j) Warren's C. L. 332. (k) This form was sustained in State v. Norman, 2 Dev. 222.

and arms, in, etc., feloniously did marry and take to wife one P. S., spinster, and to her the said P. S. then and there was married, the said M. B., his former wife, being then alive and in full life, in, etc., against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(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.(1)

That W. P., on, etc., at, etc., did marry one H. P., and her the said H. then and there had for his wife, and to her the said H.

(1) State v. Palmer, 18 Vt. 570. The indictment in this case was founded on sections five and six of chapter ninety-nine of the revised statutes, which are in these words:

Sect. 5. If any person, who has a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife in this state, he or she shall, except in the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall be punished by imprisonment, as in the case of adultery.

Sect. 6. The provisions of the preceding section shall not extend to any person whose husband or wife shall have been continually beyond the sea or out of the state for seven years together, the party marrying again not knowing the other to be living within that time; or to any person who shall be, at the time of such marriage, divorced by sentence or decree of any court having legal jurisdiction for that purpose; or to any person or persons in case the former marriage has or shall by sentence of such court be declared null and void; or to any person when the former marriage was within the age of consent, and not afterwards assented to. "We are of opinion," said the court, that the indictment is insufficient. The second marriage being in the state of New Hampshire, of whose laws we cannot judicially take notice, the respondent committed no offence against the laws of this state by such marriage; and, unless that marriage was unlawful by the laws of New Hampshire, Jane Cheney became his lawful wife, and perhaps the woman to whom he was formerly married by the same law ceased to be his wife. It could be no offence in him to cohabit in this state with the woman to whom he was lawfully married. There should, therefore, have been an allegation that the second marriage in New Hampshire was unlawful, or the respondent committed no offence by continuing to cohabit with the woman in this state. We are of opinion that, without such an allegation, the indictment cannot be sustained. If the second marriage had been in this state, inasmuch as it was illegal, the former wife being living and the lawful wife of the person charged, the illegality of the second marriage would have been apparent, and the court could have judicially recognized its illegality.

"There is another objection raised to the indictment, which we are not disposed to decide at this time, with the limited means and time which we have for investigating it, that is, whether the indictment should not have alleged that the respondent was not within any of the exceptions named in the providing clause.

The general rule is, that when the exceptions are contained in the enacting clause, the indictment must negative them, and state that the respondent does not come within them; but when they are contained in a separate section, the respondent must show, in defence, that he comes within them. There is cer

then and there was married, and that the said W. P. afterwards, to wit, at, etc., on, etc., did marry and to wife did take one J. C., and to her the said J. C. then and there was married; the said H., his former wife, being then and still alive (and the said marrying and taking to wife by the said W. of the said J., being unlawful by the laws of the state of New Hampshire), and that the said W. P., at, etc., from, etc., till the finding of this inquisition, feloniously did continue to cohabit with said J., his second wife, the said H., his former wife, being then and still living, contrary, etc. (Conclude as in book 1, chapter 3.)

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

against both parties jointly.(m)

That C. E., late of, etc., and E. R. F., the wife of J. N., late, etc., on, etc., at, etc., did commit the crime of adultery with each other, by him the said C. E. having then and there carnal knowledge of the body of said E. R. F., and by her the said E. R. F. having carnal knowledge of the body of the said C. E., she the said E. R. F. being then and there a married woman, and having a lawful husband alive, and not being then and there the wife of said C. E.(n) (and the said C. E being then and there a married man, and then and there having a lawful wife alive other than the said J. S.), and the said C. E. and the said E. R. F. not being

tainly great plausibility in the argument, that, as the exceptions are mentioned in the enacting clause of the fifth section, referring to the next section for the particulars, it should have been alleged that the respondent was not within them. This point, however, is not decided.

"It may also be worthy of some consideration, whether some further legislation is not necessary to provide for a case, where both marriages are in a foreign government, the party continuing to cohabit with only one wife in this state. It is evidently a case not specially provided for, although the terms of the statute may be broad enough to reach such a case, if the second marriage was illegal."

I have inserted a clause in the form in this text to bring it up to the opinion of the supreme court on the first point. On the second point the current of authority, as well as the course of practice, is to consider it unnecessary to negative the exceptions of the defendant's wife having been beyond sea for seven years, etc., or a divorce having been granted.

(m) This method of joinder of the guilty agents was approved in Com. v. Elwell, 2 Metc. 190. It is not necessary, it was held in the same case, to allege that the one party knew the other was married. See Com. v. Call, 21 Pick. 510. The offence is completed by carnal intercourse by a married person with a third party, whether such third party be married or not. Ib.

(n) This allegation is essential. State e. Thurstin, 35 Me. 205; State v. Hutchinson, 36 Me. 261; Moore v. Com., 6 Metc. 243; Wh. Cr. L. 8th ed. § 1714.

then and there lawfully married to each other; against, etc., and contrary, etc. (Conclude as in book 1, chapter 3.)

(996) Adultery by a married man with a married woman, in Massachusetts.(0)

That A. B., of, etc., yeoman, on, etc., at, etc., did commit the crime of adultery with one C. D.,(p) the lawful wife of one E. F.,(q) by then and there having carnal knowledge of the body of her the said C. D., he the said A. B. being then and there a married man, and having a lawful wife alive, and he the said A. B. not being married to the said C. D.; and she the said C. D. being then and there a married woman, and the lawful wife of the said E. F., against, etc., and contrary, etc. in book 1, chapter 3.)

(Conclude as

(997) Adultery in Pennsylvania, against the man.(r)

That A. L., of, etc., laborer, on, etc., at, etc., and within the jurisdiction of this court, then and there being a married man, and having a wife in full life, did commit adultery with a certain C. S. (she the said C. S. not being the wife of the said A. L.),(s) and a bastard child on the body of her the said C. S. then and there did beget, against, etc. (Conclude as in book 1, chapter 3.)

(998) Same against the woman.(t)

That C. B., of, etc., wife of J. B., on, etc., at, etc., then and there being a married woman, and having a husband in full life, adultery with a certain J. R., of the same county, mariner, did commit, contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(0) See Com. v. Moore, 6 Metc. 243; Com. v. Reardon, 6 Cush. 78.

(p) It will be sufficient, even though the woman is stated to be "a certain woman whose name is to said jurors unknown.” Com. v. Thompson, 2 Cushing, 551.

(4) This is sufficient. Com. v. Thompson, 2 Cushing, 551; Com. v. Reardon, 6 Cushing, 78.

(r) See Reed's Digest.

(s) This averment is prudent. See cases cited above; Wh. Cr. L. 8th ed. § 1728. It is said in Pennsylvania that the husband of the woman with whom the defendant committed adultery should be named. Com. v. Corson, 2 Parsons, 475. This, however, may be doubted. Helfrich v. Com., 33 Penn. St. 68. (1) See Reed's Digest.

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

That A. B., late of Parma, in the county of Cuyahoga aforesaid, on the thirteenth day of October, in the year of our Lord one thousand eight hundred and forty-two, at the township of Parma, in said county, was a married woman, being then and there married to and the lawful wife of one M. N.; and that the said A. B. did then and there unlawfully desert her said husband, M. N.; and then and there, on the said thirteenth day of October, in the year aforesaid, and from said day continually until the first day of January, in the year of our Lord one thousand eight hundred and forty-three, in the county of Cuyahoga aforesaid, the said A. B. did unlawfully live and cohabit with a man other than her said husband, M. N., in a state of adultery, to wit, with one C. D., she the said A. B., then and there and all the time aforesaid, being a married woman, and her said husband, M. N., being then and all the time aforesaid, alive.(u)

(1000) Against an uncle and niece for an incestuous marriage, as a joint offence, in Virginia.(v)

That W. T., etc., on, etc., with force and arms, at, etc., and within the jurisdiction of the supreme court of law, holden in and for the said county of unlawfully, wilfully, and incestuously did intermarry with, and take to be his wife, a certain N. H., the neice of the said W. T., being the daughter of

(u) Warren's C. L. 336.

Hutchins v. Com., 2 Va. Cases, 332. Upon this indictment process issued against both of the said defendants, and was served upon them. At the April term of said court, in the year 1820, both of the said defendants appeared and pleaded not guilty" to the said indictment, on which plea, issue was joined, and a jury was sworn to try the same, which found a verdict of "guilty" against both of the said defendants, and the court rendered a judgment accordingly. To that judgment, the present writ of error was awarded, upon a suggestion, that the said Nancy Hutchins was not indicted for the said offence, because the said indictment did not state in terms that she had intermarried with the said William Tankersly.

"And indeed it would seem at first sight that there was an absence of that certainty and technical precision which the law requires in criminal prosecutions. But when it is recollected that it was impossible that he could have intermarried with her unless she had also intermarried with him, and when upon an examination of the act of assembly it is seen that the offence is, in this respect, laid in the very words of the act, it seems to all the judges that there is all the certainty which reason or the law of the case requires. The judgment is therefore affirmed."

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