to understand and be informed, that at the time of the committing of the several offences hereinafter next mentioned, one other M. W. was a maiden and unmarried, and was under the age of twenty-one years, that is to say, of the age of fourteen years or thereabouts, and was entitled unto a very considerable personal estate, of the value of one thousand pounds and upwards, and had no father living, and was under the care, government and protection of one S. W. her mother, and that the said J. T. being such person as aforesaid, and well knowing all the premises last aforesaid, but devising and intending to entice, inveigle, take and carry away the said last mentioned M. W. from the care, government and protection of the said last mentioned S. W. her mother as aforesaid, and to cause and procure a marriage to be had and solemnized between himself the said J. T. and the said last mentioned M. W. in a secret and clandestine manner, without publication or proclamation of banns of matrimony in that behalf, and without the consent and against the will of the said last mentioned S. W. her mother as aforesaid, and to deceive, defraud and impose upon the said archbishop, did, in order to obtain a licence for the solemnization of matrimony between himself the said J. T. and the last mentioned M. W. without the publication or proclamation of the banns of matrimony in that behalf, on, &c. at, &c. aforesaid, knowingly, deceitfully and unlawfully exhibit, and cause be exhited in the said office of faculties, a certain allegation in writing in the form of an affidavit, purporting and containing therein, among other things, that he the said J. T. intended to marry with the said last mentioned M. W. a spinster, aged above twenty-one years, and that he knew of no lawful impediment, by reason of any precontract, consanguinity, affinity, or any other lawful means whatsoever, to hinder the said intended marriage, and the said J. T. then [*718] and there prayed a licence to solemnize such marriage* in the parish church of Saint Pancras aforesaid, by colour and pretext of which said last mentioned false allegation and writing by him, the said J. T. in form aforesaid made and exhibited, he the said J. T. afterwards, that is to say, on, &c. aforesaid, did fraudulently and unlawfully obtain and procure a certain licence and faculty from and in the name of the aforesaid archbishop, under the seal of the office of faculties aforesaid, for the solemnization of matrimony in the parish church of Saint Pancras, in the county of Middlesex, between the said J. T. and the said last mentioned M. W. without the publication or proclamation of the banns of matrimony, which said last mentioned licence was then and there issued and granted upon faith and credence given to the said last mentioned false allegation of the said J. T. in contempt, &c. to the great fraud and deceit of the said archbishop, to the evil example, &c. and against the peace, &c. INDICTMENTS FOR BIGAMY OR POLYGAMY. chess of That Elizabeth, the wife of Augustus John Hervey, late Against of, &c. on, &c. being then married, and then the wife of the the Dusaid Augustus* John Hervey, with force and arms, at the Kingston said parish of Saint George, Hanover Square, in the said for biga (w) This indictment, on which the prisoner was convicted before the house of lords, is taken from 11 Harg. St. Tr. 100. and see other precedents, Cro. C. C. 8th Ed. 80Starkie 412, 3. As to the offence. See 1 Hale, 692, 3, 4. Hawk. b. 2. c. 42. 1 East P. C. 464 to 472, 4. Bla. Com. 163, 4. Burn J. Polygamy, Williams J. Polygamy, Dick J. Polygamy. Bigamy is the offence of having two wives living at the same time. 4 Bla. Com. 163. By 4 Edw. I. c. 5. de Bigamis it was made felony without benefit of clergy. But it was brought within clergy by 1 Edw. VI. c. 12. s. 16. At length by 1 Jac. I. c. 11. it was enacted," that if any person within England and Wales, being married, do marry any person, the former husband or wife being alive, every such offence shall be felony, and the person offending shall suffer death as in cases of felony." These words do not, however, make the offence capital, for by 18 Eliz. c. 7. s. 2, 3. the offender, on receiving his clergy, may be burned in the hand and imprisoned for a year; by 19 Geo. III. c. 74. s. 3. a moderate fine or whipping may be substituted instead of burning; and now, by 35 Geo. III. c. 67. the same penalties are to be inflicted as in case of petit larceny. This last act enforces and does not repeal the statute of James. All the exceptions, therefore, of the older provisions still continue. These exempt from punishment those whose husband or wife shall be abroad for seven years-or being within the realm shall be absent, and the party marrying again, not Crim. Law. knowing the other to be alive-those Indictment. It is provided by 1 U my. (w) [*720] county of Middlesex, feloniously did marry and take to husband, Evlyn Pierrepont, Duke of Kingston, (the said vol. This has been construed to mean where he has been detained in prison. Hut. 131. And the provision is only cumulative, for it still leaves the prosecutor at liberty to try in the county where the offence is committed. 1 Hale, 694. But where advantage is taken of the exception to the general rule, that crimes are local by laying the venue in the county where the prisoner was apprehended, proof must be given of the place where the arrest was made, or the party confined, and if a warrant was issued, that instrument must be produced, or the court will have no jurisdiction to proceed. 2 Leach, 826. In such case also it is said that the indictment should aver the arrest in the county where the venue is laid. 1 East P. C. 469. But this perhaps would not now be considered as requisite, since the clause has been construed to mean the county where the defendant was imprisoned, and it sufficiently appears from the record, that he is brought to the bar in the custody of the sheriff, Starkie, 412. n. b. And there are other cases in which the jurisdiction of the court depends upon particular circumstances, where it is unnecessary to state them in the proceedings. Thus where the crown issues a commission to try all persons in custody before a particular day, it is not necessary to aver that a prisoner was taken before the time mentioned in the commission. Fost. 12. And the common commission of gaol delivery extends only to persons in actual custody, and yet it is never necessary to aver that they were in prison. 12 Mod. 449. Fost. 12. The indictment must state both marriages, and an averment must also be introduced, that the former consort was alive at the time of the second marriage. 1 East, P. C. 469. To this statement no venue need be inserted, Starkie, 62. The first marriage may be laid in the county where it actually took place, though the venue is laid in another. Starkie, 412, n. a. Evidence. The first wife cannot be admitted as a witness against her husband, or vice versa, for, by the very scope of the prosecution, the first marriage was valid. Sir Tho. Raym. 1. but the second may, after the first marriage has been established, for no legal relationship exists between them. Bul. N. P. 287. 1 Hale, 693. There seems to be considerable doubt as to the proof necessary to establish the first marriage; the cases on which subject are fully collected by Mr. East. 1 East P. c. 469 to 472. From his statement of Lyon's case, M. S. it appears, that though a marriage between parties of the Roman Catholic communion be valid, if it be only proved by a witness who did not understand the Latin language, in which it was celebrated, the defendant must be acquitted. How far cohabitation and acknowledgment, though sufficient proof in petit treason of the relationship between husband and wife, will be effectual in a prosecution for bigamy, seems still uncertain. 4 Burr, 2049. 1 East, P. C. 470, 1. But even if a mere confession previous to the second marriage be not sufficiently strong, it has been holden that a document purporting to be a proceeding before a court in Scotland, on a complaint that the first marriage was clandestine, in which it is admitted by the defendant, and authenticated by his signature, will be sufficient to convict him. 1 East, P. C. 470, 1. In order to facilitate the proof of marriages in general, the 26 Geo. II. c. 33. s. 14. directs that they shall always be celebrated in the presence of two credible witnesses, besides the minister who performs the ceremony, and that immediately afterwards a register shall be made in books therein directed to be prepared, signed by the minister, the parties married, and the two witnesses present. As it is not necessary in an action for criminal conversation to call one of the subscribing witnesses, in order to substantiate the register, but the identity Augustus John Hervey, her former husband, being then alive,) against the form of the statute, &c. and against the peace, &c. And the jurors, &c. further present, that the Second said Elizabeth, heretofore, to wit, on, &c. at, &c. by the count. name of Elizabeth Chudleigh, did marry the said Augustus John Hervey, and him the said Augustus John Hervey then and there had for her husband, and that the said Elizabeth being married, and the wife of the said Augustus John Hervey, afterwards, to wit, on, &c. with force and arms at the said parish of Saint George, Hanover Square, in the said [*721] county of Middlesex, feloniously did marry and take to husband the said Evlyn Pierrepont, Duke of Kingston, (the said Augustus John Hervey, her former husband, being then alive,) against the form, &c. and againt the peace, &c. That Ď. G. late of, &c. on, &c. at, &c. did marry one F. C. Against a spinster, and the said F. C. then and there had for his wife, man for and that the said D. G. afterwards, to wit, on, &c. with force having two wives and arms, at, &c. aforesaid, feloniously did marry and take to at the wife one H. M. R. widow, and to the said H. M. R. was same then and there married, the said F. C. his former wife being time. then and there living, and in full life, against the form of the statute, &c. and against the peace, &c. second when Middlesex. That W. R. late of, &c. on, &c. at, &c. did For marmarry one F. W. spinster, and her the said F. W. then and rying a there had for his wife; and that the said W. R. afterwards, wife, the to wit, on, &c. with force and arms, at London, &c. aforesaid, former befeloniously did marry, and to wife did take one M. Y. spin- ing living, ster, and to her the said M. Y. then and there was married, the offenthe said F. W. his former wife being then alive, against the der is form, &c. and against the peace, &c. And the jurors, &c. tried in do further present, that afterwards, to wit, on, &c. the said the coun W. R. at, &c. in the county of Middlesex, was apprehended ty where and taken for the felony aforesaid. (y) of the parties may be proved by other means, the same rule seems equally applicable to a prosecution for bigamy when less strictness is requisite. Bul. N. P. 27. 4 Burr. 2059. 1 East, P. C. 472. Any evidence seems to be sufficient, which will convince the jury that an actual marriage was completed. Proceedings on Conviction. By 35 Geo. III. c. 67. s. 3. any person sentenced to be transported, and afterwards found at large before the expiration of the sentence, may be tried either in the county were he was originally convicted, or in that where he was taken, and in the lat- (x) As to necessity for this aver (y) 2 Starkie, 412. he was ap prehended on 1 Jac. I. c. 11. (x) 158 On 26 Geo. III. c. 71. tering a INDICTMENTS RELATIVE TO PERSONAL PRO- That before the time of the committing the offences hereinafter mentioned, or any of them, to wit, on, &c. at a vestry s. 8. Athen and there held in and for the said parish, one I. K. was gainst the keeper of in due form of law appointed inspector of the several licensa slaugh- ed slaughter houses, and places kept or used in the said pater house, rish for the purpose of slaughtering or killing any horse, for slaughmare, &c. &c. not killed for butcher's meat. And the jurors, &c. do further present, that the said I. K. afterwards, to wit, on, &c. at, &c. in due manner took upon himself the giving notice to the said office, and remained and continued therein from thence,* inspector and until, and at, &c. after the committing of the several ofof slaught- fences hereinafter mentioned, and still is such inspector as er-houses. aforesaid. And the jurors, &c. do further present, that S. *722] R. late of, &c. being a person keeping a place for the pur horse without (=) pose of slaughtering and killing horses and other cattle, to wit, at, &c. and then and there using and occupying the same for the purpose aforesaid, well knowing the premises, but disregarding the statute in that case, &c. nor fearing the penalties therein contained, with force and arms, after the 20th day of July, A. D. 1786, to wit, on, &c. at, &c. to wit, in his said place, there feloniously did slaughter a certain horse for another purpose than for butcher's meat (i. e.) for sale for dog's meat, without giving any such notice as in and by a certain act of Parliament, made and passed in the parliament of our said lord the now king, in the 26th year of his reign, intitled, &c. that is to say, without giving notice to the said R. A. the inspector aforesaid, or any other such inspector appointed for the said parish, notice in writing of his intention to slaughter the same six hours previous to his slaughtering the same, contrary to the form of the statute, &c. to the evil, &c. and against the peace, &c. 2nd count, slaughtering a mare. 3rd, slaughtering a gelding. 4th, for slaying a horse. 5th, for slaying a mare. 6th, slaying a gelding. (z) This precedent from the MS. collection of a gentleman at the bar. By 26 Geo. III. c. 71. s. 8. the keeping any slaughter house without licence, or the slaughtering any horses, oxen, or cattle, except for meat, without notice to the inspector therein appointed, is made felony, punishable by fine and imprisonment, whipping, or transportation for seven years. |