plaintiff, and was to show cause why an attachment should not issue against the defendant for non-payment of the said allowance. By way of answer to the rule for an attachment, the defendant pleaded in bar an act of assembly of April 20, 1873, divorcing C. A. Thiele, the defendant, and Marie Louise, his wife, from the bonds of matrimony, and releasing each from all the duties consequent thereon, as though they had never been married. The preamble to said act refers to the presentation of a petition to the Legislature by said Thiele, praying for a divorce, and alleges that "the reasons set forth in said petition are sufficient to entitle him to ad divorce, and the courts of this Commonwealth have not jurisdiction to decree divorces in such cases." The plaintiff alleged that the courts had jurisdiction over the cause of divorce upon which the Legislature acted, and that the statute referred to came within the constitutional prohibition. In Cronise vs. Cronise, 4 P. F. S. 255, and Roberts vs. Roberts, Idem 265, the rule is laid down, that "special divorce laws are legislative acts, and prima facie founded on sufficient cause not within the jurisdiction of the courts; this cause is inquirable into as a fact when not set forth in the act." The grounds of divorce are not set forth in the act now under consideration, beyond the general statement in the preamble before referred to, that "the courts have not jurisdiction to decree divorces in such cases.” Under the authority of the cases above referred to, I regarded an inquiry into the cause of the legislative action as proper. The burden of proof was upon the defendant, and it has not been maintained successfully. Prima facie the act divorcing these parties is legal, and we will not presume the Legislature had no jurisdiction. The evidence submitted was not sufficient to overthrow the presumption of regularity which attaches to the act of assembly. The amount due under our order was fully paid to the date of the act referred to. We are now asked, in case we sustain said act, to enforce payment of the allowance to the time when the defendant came in, and pleaded his legislative divorce. I am of opinion that the latter relieved the defendant from further liability under our decree. He was not bound to plead it at all, excepting in the case of an attempt to enforce the order. I, therefore, decline to grant the rule for an attachment. I also decline to vacate the original order. It is a judicial decree, and was properly made upon a full hearing of the parties. As such it must stand until reversed or set aside by competent authority. Our power to enforce it has been taken away by the Legislature. Our decree is beyond the reach of an act of assembly. [Leg. Int., Vol. 31, p. 172.] COMMONWEALTH vs. ELLEN MCNERNY alias ELLEN O'LEARY. The statute of limitations is a bar to an indictment for bigamy. It begins to run from the date of the second marriage. Opinion delivered May 23, 1874, by PAXSON, J.-The defendant was indicted and tried for bigamy. The jury found specially that she was "guilty of having two husbands at the same time, but that the second marriage was contracted upon a false rumor, in appearance well founded, of the death of the first husband." A motion in arrest of judgment was filed on behalf of the defendant. It raises the question, which I reserved at the trial, whether the offence was barred by the statute of limitations. The indictment charges the second marriage to have taken place upon a day which was more than two years prior to the finding of the bill. It was alleged by the learned counsel representing the Commonwealth, that the crime of bigamy as defined by our statute, is a continuing offence, and the statute of limitations does not apply. If this be so, it is an anomaly in our system of criminal law. No such exception appears upon the face of the said last mentioned statute. It says, "All indictments which shall be brought or exhibited for any crime or misdemeanor," etc. It is to be noted that our statute concerning bigamy differs in its terms from those in force in most of our sister States. In all of them cited by Mr. Wharton (Vol. 2, section 2619), the offence described, is that of marrying a second wife or husband during the lifetime of the first. Our statute is peculiar in its phraseology. It says: "If any person shall have two wives or two husbands at one and the same time, he or she shall be guilty of a misdemeanor," etc. With the exception of a modification in the punishment, this act has been in force since 1705. It will be found in 1st Smith's Laws, 29. In a note to page 30 of the book just cited, I find the following: "The offence defined in this act is said to be properly polygamy, and not bigamy, which originally had a different meaning. Bigamy is, however, understood in law to be where a person marries a second wife or husband, the first being living." This is undoubtedly correct. The proper name of the offence of having a plurality of husbands or wives is polygamy, and it is so designated by the statutes of Maine, Massachusetts, Michigan, New York, and Vermont. The word bigamy signifies, as its derivation clearly indicates, being twice married. This was never an offence at common law, although prohibited by the canon law. According to the canonists, bigamy consisted in marrying two virgins successively, one after the death of the other; or in once marrying a widow: 4 Black's Com. 163; and see Bac. Abr. tit. Bigamy, in the notes. Burrill defines bigamy to be, at canon law, "the marriage of a second wife after the death of the first, or the marriage of a widow, either of which was considered as bringing a man under some incapacities for ecclesiastical offices." By a corruption of the meaning of the term, bigamy is now understood in law to be "the state of a man who has two wives, or of a woman who has two husbands living at the same time." Bouvier so defines it, and it will be seen that he uses almost the exact language of our act of assembly. It would seem clear that the latter was intended to punish the common law offence of bigamy. The indictment in this case does not follow the language of the act of assembly above cited, but charges the defendant in terms with a second marriage within the jurisdiction of the court, upon a day named in the bill, and during the lifetime of a former husband, to whom, as charged, she had been lawfully married. Under this indictment I have no doubt the offence is the second marriage. The first marriage was not a violation of law. It was only when the defendant entered into a second marriage, pending the life of her first husband, that the law interposes its prohibition, inflicts its penalties, and strikes down the second contract as null and void. Was the offence complete when the second marriage was celebrated, or was it continuous in its nature, repeated day by day, by reason of the consequent cohabitation of the parties? In support of the latter view, it was urged, that if it were not a continuing offence, and the statute ran from the time of the second marriage, there would be no way to reach a bigamist after the expiration of the statutory period; that he might then live with his two or more wives in defiance of the law, of public sentiment, and to the injury of the morals of the community. If this be true, it might be an excellent reason for a modification of the law, but would not justify the court in giving it a construction not warranted by reason and authority. The object of the statute is to protect the citizen from stale prosecutions. It is called a statute of repose. As bigamy is not excepted out of the statute, the reason ought to be very clear and satisfactory to justify the court in excepting it by judicial construction. The argument that a bigamist could always escape by concealing his second marriage for two years, is more specious than sound. It could be used with precisely the same effect as to every other offence embraced within the statute: Commonwealth vs. Hutchinson, 2 Parsons, 309 is an authority that in cases of bigamy the statute applies. The offence consists in the contracting of the second marriage, not in the subsequent cohabitation of the parties. The latter may exist either with or without such contract, with its resulting scandal and injury to good morals, and is punishable under the criminal law as adultery or fornication, as the case may be. The contract of marriage does not change the character of the cohabitation, either in law or morals, so far as the guilty party is concerned; but it aids him or her in obtaining the control of the body of an innocent person by a gross fraud. For this reason, the law not only strikes down the contract itself, but punishes the person making it. In the State vs. Patterson, 2 Iredell, 346, it is said: "Marriage, or the relation of husband and wife, is in law complete, when parties able and willing to contract actually have contracted to be man and wife, in the form and with the solemnities required by law. It is marriage; it is their contract which gives to each right or power over the body of the other, and renders a consequent cohabitation lawful; and it is the abuse of this formal and solemn contract by entering into it a second time when a former husband or wife is yet living, which the law forbids, because of its outrage upon public decency, its violation of the public economy, as well as its tendency to cheat one into a surrender of the person under the appearance of right. A man takes a wife lawfully when the contract is lawfully made. He takes a wife unlawfully when the contract is unlawfully made, and this unlawful contract the law punishes." If the petition of the learned counsel who represented the Commonwealth be sound, in order to convict a man of bigamy it would be neces sary to prove that he had both wives within our jurisdiction within two years prior to the finding of the bill of indictment. In other words, if a person residing in Camden, and having a wife there, should desert her, come to this city and marry a second wife here, he could not be convicted of bigamy in this court unless he also brought his first wife within our jurisdiction. It would also lead us to the conclusion that a visitor to our city from abroad, coming from a country where plurality of wives is legalized, and who should be so unfortunate as to bring more than one wife with him, would be liable to a conviction for bigamy and to imprisonment in the penitentiary. And not only here, but in every county in the State through which he might happen to pass with his wives upon a train of cars. We do not regard our act of assembly as open to any such construction. While it is peculiar in its terms, we are of opinion that it is merely descriptive of the offence of bigamy, which, as we have seen, is the contracting of a marriage by a person who has at the time a former husband or wife living. The offence is complete when the second marriage is celebrated, and the statute commences to run from that time. This view of the case renders it unnecessary to consider any question arising upon the special verdict. The statute of limitations is a flat bar to this prosecution, and the defendant is entitled to a general verdict of not guilty. The judgment is arrested, and the defendant may be discharged upon her own recognizance. P. E. Carroll and Daniel Dougherty, Esqs., for Commonwealth. [Leg. Int., Vol. 31, p. 172.] COMMONWEALTH vs. HENNING. The defendant's admission as to a former marriage may be given in evidence against him to prove such fact. Opinion delivered May 23, 1874, by PAXSON, J.-The defendant was convicted of bigamy, and the case comes up now upon a motion for a rule for a new trial. We have already decided in Commonwealth vs. McNerny, that the offence of bigamy consists in the celebration of the second marriage during the lifetime of a former wife or husband, and that it is not necessary for the Commonwealth in any such case to prove that the defendant had both wives or both husbands within the jurisdiction of the court. In this case the defendant married his first wife in Germany. Subsequently he came to this country, leaving his wife in Germany, and married a second wife in this city. The important question raised upon this motion is, whether the fact of his first marriage was sufficiently established. It is undoubtedly true, that in order to convict a person of bigamy the first marriage must be established as a valid marriage in fact. The law will not presume it as it will in civil cases. Where the first marriage was contracted abroad, it is for the Commonwealth to prove that it was valid by the law of the country where it was contracted. The Commonwealth offered no proof of the first marriage excepting the admissions of the defendant. When charged with the first marriage by the second wife he denied it; but when a paper received from Germany, purporting to be a certificate of his former marriage, and containing a record of the circumcision of his child by his first wife, was exhibited to him, he was greatly confused, cried, said he knew he had done wrong, that he had a wife in Germany, and promised to get a divorce from her. The paper referred to was allowed to go to the jury, with a translation; not as a marriage certificate containing a formal proof of a foreign marriage, but as a paper which had been exhibited to the defendant at the time the conversation referred to occurred and the alleged admissions were made. I am unable to see any error in the admission of this paper. It was as clearly evidence as the conversation in regard to it, and of which, in one sense, it may be said to have formed a part. It was made evidence by the acts and admissions of the defendant. In Maine, Delaware, Virginia, South Carolina, Georgia, Alabama, Indiana, Texas, Ohio, as well as in England and this Commonwealth, the defendant's admissions as to a former marriage may be given in evidence against him to prove such fact: Wharton's A. C. L., § 2633. The rule has been so held in Forney vs. Hallacher, 8 S. & R. 159, and Commonwealth vs. Murtagh, 1 Ash. 272. The latter case was tried in this court, and the point in controversy was considered and decided by Judge King, in a very able and exhaustive opinion. At the close thereof he said: "That no misunderstanding may arise as to the extent of this decision, I repeat that I consider that confessions of a prior marriage are only evidence of the fact; that these confessions and acknowledgments derive their force from the time, manner, and circumstances of which they are made, and that connected with these, they may exhibit the most conclusive or the weakest testimony which can be offered of the fact. It is for intelligent jurors, aided by experienced courts, to weigh and discriminate their relative forces." After a proper caution from the court, the jury found against the defendant upon the question of the existence of the former marriage. I cannot say they were not justified by the evidence. I do not attach much weight to the argument that the mere admission of the defendant that he had a wife in Germany, was not an admission that he was legally married there, and that his first wife was still alive. Why should the defendant promise to procure a divorce from his first wife if the marriage were not legal, or his wife were not still alive? Both of these points were embraced in the admissions of the defendant, and have been passed upon by the jury. I see no reason to disturb their verdict. Motion refused. White & Earle, Esqs., for Commonwealth. J. W. Brown and Joseph S. Ford, Esqs., for defendant. |