is not implicated therein, of course this constitutes a good and sufficient cause for vacating the judgment. Decrees in divorce suits are not exempted from the operation of this rule, although courts are more reluctant to disturb a decree of divorce, especially after a second marriage involving the interest of third persons. A full discussion of the general question involved may be found in the cases cited in 2 Bishop on Marriage, Divorce, and Separation, sec. 1552, note 3; also 1 Black on Judgments, sec. 320.

In Bradstreet v. Neptune Ins. Co., 3 Sum. 604, Story, J., says: "I know of no case where fraud, if established by competent proofs, is not sufficient to overthrow any judgment or decree, however solemn may be its form of promulgation."

In Adams v. Adams, 51 N. H. 388, 12 Am. Rep. 134, which is a leading case upon the subject under consideration, Bellows, C. J., says: "This doctrine, in regard to impeaching judgments and decrees for fraud, has been applied in numerous cases to decrees in divorce suits and suits for nullity of marriage, and the weight of authority is greatly in favor of such application. Upon principle, there is no solid ground for any distinction between decrees in divorce suits and other judgments; or, if there be any, it is to be found in the much greater danger of fraud and imposition in divorce cases, as compared with others, thus adding largely to the necessity and importance of preserving the power to correct or vacate 358 decrees that have been obtained by fraud and imposition. Accordingly, it is laid down in Bishop on Marriage, Divorce, and Separation, section 699, that if a tribunal has been imposed upon, and in consequence of the fraud a judgment of divorce has been wrongfully rendered, it may vacate this judgment when, upon a summary proceeding, it is made cognizant of the fraud." To the same effect are Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393; Bomsta v. Johnson, 38 Minn. 230; Wisdom v. Wisdom, 24 Neb. 551, 8 Am. St. Rep. 215.

It is clear, then, that whatever the status of the defendant was between the time of the granting of said decree of divorce and the annulment thereof, yet the said Matilda Watson was his lawful wife during the time covered by the indictment in this case.

The next error alleged to have been committed by the presiding justice is that he overruled the defendant's plea to the jurisdiction of the court. The record shows that on March 23, 1896, the defendant was arraigned and pleaded "not guilty,"

and that on May 19, 1896, without having asked or obtained permission to retract this plea, and without permission to file any further plea, he filed a plea to the jurisdiction, as he styles it (although in fact it is a plea of autrefois convict, which is a plea in bar), in which he sets up former jeopardy and former punishment for the same or a kindred offense. On June 8, 1896, the defendant also filed a motion to dismiss the indictment for want of jurisdiction, on the ground of former jeopardy. On June 10th he filed what he denominates a "motion to quash, in the nature of a substantial demurrer," on the ground that the indictment charges no offense known to the law, and for various other reasons not appearing of record. On the same day he made a motion for leave to withdraw his plea of "not guilty," which was denied by the court, whereupon the trial of the case proceeded and the jury found the defendant guilty.

First, then, as to said plea to the jurisdiction. This plea was filed too late. The rules of criminal pleading require that a plea to the jurisdiction, like a demurrer, plea in abatement, 359 plea in bar, or any other special plea whatever, shall precede the plea of not guilty. If the special plea is determined against the defendant, the practice is to then allow him to plead over: State v. Edgerton, 12 R. I. 108. Moreover, after a plea of not guilty the defendant cannot file any other plea without leave of court: Commonwealth v. Blake, 12 Allen, 188; Commonwealth v. Lannan, 13 Allen, 563. We have, however, examined said plea to the jurisdiction, but do not find that it would have been of any avail if it had been filed in season. It sets out, or attempts to set out, a former conviction of the defendant for bigamous cohabitation with the said Mary A. Watson, the indictment in which case covers and includes the same time on which the offense is laid in the one before us. It also sets out that the defendant was imprisoned for six months and ten days for said offense, and he refers to the record of said case in support of his allegation. As that case was before this division on habeas corpus, we can properly take notice of the facts therein, and they are these: The defendant was convicted of bigamous cohabitation with said Mary A. Watson, as alleged in the plea, and was sentenced therefor to imprisonment for the term of four years. Some time after he was committed he obtained a writ of habeas corpus on the ground that the indictment stated no offense known to the law, and after hearing thereof this court decided that the indictment was

fatally defective and ordered the defendant discharged from imprisonment: See Watson, Petitioner, 19 R. I. 342. It will at once be seen, therefore, that said plea to the jurisdiction, socalled, is without any force or validity. The indictment on which he was tried, convicted, and sentenced was not only for another and distinct offense from that with which he is charged in the indictment now before us, but by reason of being fatally defective in the manner aforesaid was a mere nullity. "Where there is no jurisdiction," as said by Mr. Wharton in his work on Criminal Pleading and Practice, ninth edition, section 507, "or where the indictment is defective even in a capital case, it is agreed on all sides the defendant has never been in jeopardy, and consequently, if judgment be arrested, a new indictment can 360 be preferred and a new trial instituted without violation of the constitutional limitation. Even partial endurance of punishment under a defective indictment will be no bar when the proceedings are reversed on the defendant's motion; although it is otherwise when the judgment is unreversed. But a judgment erroneously arrested on a good indictment may be a bar": See, also, Kohlheimer v. State, 39 Miss. 548, 77 Am. Dec. 689, cited by counsel for defendant. Moreover, a plea of autrefois convict must allege that the two offenses are the same; for when the offenses charged in the two indictments are distinct, though committed concurrently, they are separably prosecutable. Thus, the fact that a person has been convicted of keeping a drinking-house and tippling-shop is no bar to an indictment for presuming to be a common seller, although both indictments cover the same period of time and are supported by the same acts of illegal sale: State v. Inness, 53 Me. 536. Blackstone says that the pleas of former acquittal or former conviction must be upon a prosecution for the identical act and crime: 4 Blackstone's Commentaries, 336. And Chief Justice Shaw says that, in considering the identity of the offense, it must appear by the plea that the offenses charged in both cases are the same in law as well as in fact; and that the plea will be vicious if the offense charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact: Commonwealth v. Roby, 12 Pick. 496; Rice's Criminal Evidence, sec. 385, and cases cited; Commonwealth v. Putnam, 1 Pick. 136, 140.

As to the defendant's motion to dismiss, it is sufficient to say that it is based upon the same ground as the plea which we

have just passed upon, and hence requires no further consideration.

The defendant's "motion to quash, in the nature of a substantial demurrer," was properly overruled. A motion to quash an indictment or other criminal process is addressed to the discretion of the trial court, and, as said by Ames, C. J., in State v. McCarty, 4 R. I. 84, "is never granted unless by this short dealing the ends of justice can be as well attained, and the rights and equities of the parties as well 361 observed as by allowing the cause to go on to its termination in the accustomed mode": See, also, Chitty's Criminal Law, 300-303. We have, however, examined the indictment in the case at bar, and find that it is in the ordinary form, and clearly and technically sets out and charges the crime of adultery.

As to that part of the motion which sets up matters dehors the record, we reply that, in the first place, it sets out no ground of defense, and, in the second place, even if it did, the matter should have been set up by plea and not by motion to quash, as the latter can be granted only for defects apparent on the record: Howland v. School Dist., 15 R. I. 184. See, also, State v. Drury, 13 R. I. 540; State v. Maloney, 12 R. I. 251; Wharton's Criminal Pleading and Practice, secs. 386-388.

The only remaining motion to be considered in this case is that in arrest of judgment, which is merely a rehash of the defendant's plea to the jurisdiction, so-called, and of his subsequent motions which we have already considered. The motion is coupled with an argument to the effect that the defendant, if indictable at all, should have been indicted for some other offense than that of adultery, and also that one of the guilty parties cannot be indicted without the other. It would not seem to require a very thorough knowledge of criminal pleading in order for counsel to avoid mistakes of this sort, as well as those hereinbefore pointed out. The motion in arrest of judgment is overruled.

We have examined the numerous other grounds contained in the defendant's petition for a new trial, but do not find that they are entitled to any serious consideration.

Petition denied and case remitted to the common pleas division for sentence.

ADULTERY.-A DIVORCED MAN does not commit adultery by marrying and cohabiting with another woman, though the divorce was procured by his wife and he has obtained no divorce: State v. Weatherby, 43 Me. 258, 69 Am. Dec. 59. And a man cannot be con

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victed of adultery who in good faith marries a woman whose husband has remained absent for more than seven years without being heard from and is believed by both parties to be dead, although in fact he is still living: Commonwealth v. Thompson, 6 Allen, 591, 83 Am. Dec. 653. Compare Commonwealth v. Thompson, 11 Allen, 23, 87 Am. Dec. 685; and see State v. Cutshall, 109 N. C. 764, 26 Am. St. Rep. 599.

DIVORCE-VACATING DECREE OF.-A decree of divorce obtained by a husband through fraud upon the wife will be set aside: Note to Brown v. Grove, 9 Am. St. Rep. 826; although a marriage has been contracted on its faith and issue born: Allen v. Maclellan, 12 Pa. St. 328, 51 Am. Dec. 608. See, further, the monographic note to Greene v. Greene, 61 Am. Dec. 459-468; Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. Rep. 641.

PARKER V. PROVIDENCE CARRIAGE COMPANY. [20 Rhode Island, 378.]

NEW TRIAL-MISCONDUCT OF COUNSEL.-A groundless and wholly unjustifiable attack by counsel upon a party to a cause on trial before a jury is calculated to prejudice their minds and prevent them from impartially weighing the evidence, and is ground for a new trial.

T. P. Owen, for the plaintiff.

E. D. Bassett, E. L. Mitchell, and A. P. Sumner, for the defendant.

379 PER CURIAM. The issue in this case was whether Deslauriers was a member of the defendant firm. The jury returned a verdict for the plaintiff, thereby finding that he was. We are inclined to think that a preponderance of the evidence is against the finding. The record shows that the plaintiff's attorney, while examining one of his witnesses, counsel for Deslauriers having objected to a question put to the witness, stated in the presence of the court and jury, "I expect at some stage of the game to show, by the testimony of witnesses who are perfectly disinterested and know about these transactions, that it is an old trick of Deslauriers to do such work, to get up a company, get goods for twenty per cent of what they are worth, and then swipe the whole business, and steal the books, etc." Such an attack on a party to the cause, which, so far as the case shows, was perfectly groundless, was wholly unjustifiable and should have received, as it did, the immediate censure of the court. It was calculated to prejudice the minds of the jury