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Precedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) online

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examination or interruption, carried and conveyed through any
])art of the territory of the said United States ; and wliereas,
the said R. L., Esq., so being an ambassador and public foreign
minister, acknowledged, received, and resident as aforesaid, on
the suid tenth day of June, in the year aforesaid, in the district
aforesaid, and within the jurisdiction of this court, had written
a certain letter on business respecting the public duties of the
said R. L., in his public capacity aforesaid, to a certain J. R.,
Esfi., president of the British province of Up]>er Canada, the
said J. R. then and there being a i)ublic agent of the said king

(r) I'. S. V. Thomas, Pliil. 1800. This iiidictincnt, was druwii by Mr. llawle,
then ilistrict attorney, but was never tried.

550



AGAINST FOREIGN MINISTERS. (983)

of Great Britain, to wit, in Upper Canada aforesaid, which let-
ter bore date, etc., and also a certain other letter on such busi-
ness, to the same J. R., Esq., which other letter bore date, etc.,
and the same two letters closed in a packet sealed with the seal
of the said R. L.,and subscribed with his the said R. L.'s name,
to wit, with the letters " R. L.," and directed to the said J. R ,
Esq., by the words " The Honorable President R., etc., Toronto,
Upper Canada," he the said R. L., so beinfy ambassador and public
minister as aforesaid, had caused to be delivered to a messenger
or person employed for the purpose of safely conveying the same
to the said J. R., Esq. ; that D, T., late, etc., J. T.,late, etc., and
G. R., late of, etc., yeoman, well knowing the premises, but con-
triving and unjustly intending to interrupt and disturb the peace,
amity, and good understanding subsisting between the said
United States and the said king of Great Britain, on, etc., at,
etc., and within the jurisdiction of this court, maliciously, un-
lawfully, and without the license of the said R. L., Esq., the said
sealed packet, superscribed and directed as aforesaid, inclosing
the said two letters, did break open, and the said two letters did
then and there open and read, and the contents thereof did then
and there promulgate and make publicly known.

And the grand inquest aforesaid, upon their oaths and affirma-
tions aforesaid, do further present, that the said D. T., J. T., G.
P., and also W. D., late of, etc., contriving and unjustly intend-
ing as aforesaid, afterwards, to wit, on, etc., at, etc., and within
the jurisdiction of this court, unlawfully and maliciously, and
without the license of the said R. L., Esq., he the said R. L.,
Esq., then and there still being and continuing ambassador and
minister plenipotentiary from the said king of Great Britain to
the said United States, did print and publish, and cause to be
printed and published, the substance of the contents of the said
two letters in a certain newspaper printed in Philadelphia afore-
said, called "The General Advertiser or the Aurora," in con-
tempt 11 nd violation of the laws of nations, against the form of
the treaty between the said United States and the sa'd king of
Great Britain, to the great damage of the said R. L., Esq., so
being ambassador and minister plenipotentiary from the said
king of Great Britain to the said United States, and against, etc.
{Conclude as in book 1, chapter 3.)

551



OFFENCES AGAINST SOCIETY.



CHAPTER IX.

BIGAMY, ADULTERY, AND FORNICATIOX.(a)

[So far as these offences approach open lewdness and lasciviousness. they
are examined supra, 705-7 76, where the general principles applying
to them as such are considered.]

(985) Bigamy under English statute.

POLYGAMT, BIGAMY, IXCEST, ETC.

(986) Polygamy in Massachusetts.
(986a) Another form.

(987) For polygamy, by continuing to cohabit with a second wife in Mas-

sachusetts. 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 §§ o, 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) Adultrry in North Carolina, against both parties jointly.

(1002) Fornication and ba'^t.irdy in South Carolina, against the man.

(1003) Same in Pennsylvania.

(1004) Same against a woman.

(a) See Wh. Or. L. 8th ed. § 1683 et seq.
552



BIGAMY, ADULTERY, AND FORNICATION. (985)

(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.
w^as 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-

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

(c) This is adequate. JSIurray v. R., 7 Q. B. 700. A varianee as to the
second •wife's name is fatal, it being necessary to individuate her, in order to de-
termine the offence. R. v. Seeley, 4 C. & P. 579 ; 1 Mood. C. C. 303 ; Hutch-
ins r. State, 28 Ind. 34 ; Com. v. Whaley, 6 Bush, 266 ; State v. Loftin, 2 Dev.

6 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 receiv-
ing stolen goods, we should hold that tlie more ijeneral statement is enough. If
we are foi'ced 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 defend-
ant was capable of consenting to marriage, and was not bound by other matri-
monial 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. H these are needed for justice, they can be supplied by a bill of par-
ticulars. 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 v. R., 7 Q. B. 700; State t'.
Abbey, 29 Vt. 60; Com. v. Jennings, 121 Mass. 50; Fleming v. People, 27 N.
y. 399; Stanglein i-. State, 17 Oh. Stat. 453 ; State d. AVilliams, 20 Iowa, 98 ;
State I'. Johnson, 12 Minn. 476 ; State r. Loftin, 2 Dev. & Bat. 31. It is other-
wise 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 tiuit
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 defend-
ant, 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 de-
fendant, 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 defemlant 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. i'. Rich-
ardson, 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.

553



(986a) OFFENCES AGAINST SOCIETY.

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, chaptei' 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 nan)e of M. D., was lawfully married, according to the
laws of said comnionwealth, 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 AV. M. B., she the saidM. 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 tiiesaid M. never hav-
ing 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 co-
habit 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, oii 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 polygamj', against, etc., and contrary,
etc. {Conclude as in book 1, chapter 3.)

(986a) PJjjgKniy in 31ass. under Rev. Stat. eh. 165.

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

(rf) See Com. v. Masli, 7 IMctf. 4 72, where tliis count w.'is held t:;oo(l. In tliis
ease it was Iiehl, that under the Rev. Sts. eli. 130, i^ 2, if a woman wlio has u
husl)aM(l livini^ marry another i»erson, slie is |)iinishai)h', tiiouj^h lier Inishand has
vohinfarily withdrawn from lier, and remained absent and unheard ol", lor any
teirn of time ii-ss tlian seven years, and though she honestly believes, at the time
of her stjcond marriage, that he is dead.

554



BIGAMY, ADULTERY, AND FORNICATION. (987)

the said W. 11. J., being then and there married and the lawful
liusband of the said A. G., she the said A. G , then being liis
former wife and then living, and lie, the said W. 11. J., never
having been lawfully divorced from the said A. G. ; and tliat
the said W. II. J. afterwards did cohabit with the said II. 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 ;
wherel)y, and by force of the statute in such case made and pro-
vided, he, the said W. II. J., is deemed guilty of the crime of
polygamy. And so the jurors aforesaid, upon their oath afore-
said, present, that said W. II. 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, § - {f)

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 at

B., in the county of S., was lawfully married to one A. B., an<l
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 theyear
of our Lord at B., in the county of S., the said C. D.

feloniously and unlawfull}' did marry and take to wife one E. F.,
the said C. D. then and there being married and tlie lawful hus-
band of the said A. B., the said A. B. tiien 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 I), is deemed

(c) Tlie above indictment was sustained in Com. v. Jenning, 121 M:iss. 47,
under Gen. Stat. c. 1()5, § 4, wliicli enacts that "whoever, having a foi-mer hus-
band or wife living, mari-ies another person, or continues to cohabit with sucli
second iiusbaiid or wife in tliis state, shall (except in the cases mentioned in the
following section) be deemed guiltv 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.

(/) Tr. & H. Free. 440.

555



(990) OFFENCES AGAINST SOCIETY.

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 con-
trary 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 tiien 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.)

(9b9) 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. E.., spinster, and to her the said E. R. then 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 icoman.{h)

That II. 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 unhiwfull}' 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.)

{(j) Drawn in \1'.)'), l)_v Mr. .I;ircil Inj^'crsoll, tlu-n iittoriiey-pi'nrral of I'onii-
Bylvjinia.

{h) Drawn in 1790, by Mr. IJraiilonl, tluii attornt-y-gencral of Pennsylvania.

556



BIGAMY, ADULTERY, AND FORNICATION. (993)

(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 Rock-
ingham, in the state of Virginia, did marry one M. !N'.,and her
the said M. N. then and tliore 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 un-
lawfully marry and take to wife one 0. P., and to her the said

0. 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.)

(99l2) Bigamy. Where the first marriage took jjlace 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. IST., 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. IST., did un-
lawfully 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

{{) Warren's C. L. 332. (/) AVarron's C. L. 332.

(k) This form was sustained in State v. Norman, 2 Dev. 222.

557



(994) OFFENCES AGAINST SOCIETY.

and arms, in, etc., feloniousl}' did marry and take to wife one P.
S., spinster, and to her the said P. S. then and there was mar-
ried, 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, eh. 96, Rev. Sts. Vermont., tohere
both marriages were in other states than that in which the
offence is indicted.{l)

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 II.

(J) 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, wlio has a former husband or wife living, shall marry
anotlier person, or shall continue to cohabit with such second luisband or wife in
this state, he or she shall, except in the eases mentioned in the following section,
be deemed guilty of the crime of polygamy, and shall be punished by imprison-
ment, as in tlie case of adultery.

Sect. G. The provisions of tlie ])receding section shall not extend to any person
whose husband or wife shall have been continually beyond the sea or out of the
stat« 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
mairiage, divorced by sentence or decree of any court having legal jurisdiction
for tliat i>ur|)Ose ; 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 iV)rmer marriage was within tin; age of consent, and not afterwards assented to.

"We arc^ of opinion," said the court, "that the indictment is insuflicient.
The second marriage being in the state of New Hampshire, of whose laws we
cannot judicially take notice, the respondent committed no ollence against the
laws of this state by such marriage ; and, unless tliat marriage was unlawful by
the laws of Xew Hampshire, Jane Cheney became his lawful wife, and perhaps
the woman to whom he was tornu'rly married by the same law ct-ased 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, 'ilu're should, tiierefbre, have been an allega-
tion that the second marriage in New Hampshire was unlawful, or the respondi'nt
committed no offence by contiiuiing to cohaliit with the woman in this state. We
are of oj)inion that, without such an allegation, the indictuu-nt cannot l)e sustained.
If the second nun'riage had been in this state, inasnuich as it was illegal, the
former wife being living and the lawful wife of the person charged, tlu- iiU-gality
of the second marriage woulil have l)een ajiparcut, and the court could have
judicially recognizeil its illegality.

"Tiiere is another objection raised to the indictment, which wi- are not dis-
posed to decide at this tinu", with the limited means and time which we have for
investigating it, — that is, whether the indictment should not have alleged that
the resjMjndent was not within any of the excei)tions named in the providing
clause.

"The general ruh^ is, thiit when the exceptions ai'e coutiiiiied in tlie enacting
clause, the indictment must negative them, an<l state tiiat the respondent does
not come within them; hut wiien the)' an; (■f)utiiined in a separate section, the
respondent must show, in d<'fenee, that he ccunes within them. 'I'here is cer-

558



BIGAMY, ADULTERY, AND FORNICATION. (995)

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, heins; tlien and still alive (and the said mar-
rying 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 inquisi-
tion, feloniously did continue to cohabit with said J., his second
wife, the said II., his former wife, being then and still living,
contrary, etc. (Conclude as in book 1, chapter 8.)

(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. K, late,
etc., on, etc., at, etc., did commit the crime of adultery witli each
other, by him the said C. E. having then and there carnal knowl-
edge 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. Yj.{i\) (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 witliin 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 botli 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 j)oint. On the second point the current of
authority, as well as the course of practice, is to consider it unnecessary to nega-
tive the exceptions of the delendant's wife having been beyond sea for seven
years, etc., or a divorce having been granted.

(m) This method of joinder of tlie guilty agents was approved in Com. c.
Elwell, 2 Mete. 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. c. Call, 21 Pick. .510.
The oH'ence is completed by carnal intercourse by a married person with a third



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