Barber v. State, 50 Md. 161

Barber v. State

50 Md. 161 | Md. | 1878

Alvey, J.,

delivered the opinion of the Court.

The plaintiff in error was indicted for bigamy, and he entered a demurrer to the indictment, and the demurrer having been overruled by the Court, he pleaded not guilty, and was tried and convicted. He has brought the case here as on writ of error, to have the judgment on demurrer reviewed; and whether there be error in that-judgment is the only subject of decision by this Court.

The Attorney General has waived all objection to the transcript because of the informal manner of setting out-the demurrer to the indictment, and we are to take the record as fairly presenting the questions raised by the plaintiff in error upon his demurrer.

The indictment charges that the plaintiff in error did,, on the 27th of June, 1877, feloniously marry and take to wife a certain woman named, his first wife being then living.

The objections taken to the indictment are: 1. That the offence charged is not a felony by the law of this State. 2. That the indictment fails to allege that the plaintiff in error knew, at the time of his second marriage, that his. former wife was then living. 3. That the indictment fails to allege that the first wife was not beyond seas, or that she had not absented herself, for seven years together, and that the plaintiff in error did know that she was still living.

1. As to the first objection, we think it clear that it cannot be sustained.

Bigamy was not a felony at the common law; indeed, according to that law, it was not a crime of which the *167ordinary common law tribunals took cognizance at all. It was originally considered as of ecclesiastical cognizance exclusively. But by the Stat. 4 Ed. 1, c. 5, known as tbe Stat. De Bigamis, the benefit of clergy was taken away from it; and during the existence of that statute, this ecclesiastical offence was frequently used as the subject of counterplea, in the common law Courts, to the claim of the benefit of clergy in the prosecution of clergyable offences. However, by Stat. 1 Ed. 6, c. 12, sec. 16, bigamy was declared to be no longer an impediment to receiving the benefit of clergy; and this was the state of the law upon this subject until the Stat. 1 Jac. 1, c. 11. By this statute it was enacted that if any person, being married, shall afterwards marry again, the former husband or wife being alive, “ such offence shall he felony, and the person and persons so offending shall suffer death as in cases of felony.” To this general enactment there are certain exceptions made by the statute, by way of provisos, and as these are abbreviated by Blackstone, (4 Com., 164,) they are the following: “1. Where either party hath been continually abroad for seven years, whether the party in England hath notice of the other's being living or no. 2. Where either of the parties hath been absent from the other seven years within the kingdom, and the remaining party hath had no knowledge of the other's being alive within that time. 3. Where there is a divorce (or separation a mensa et thoro) by sentence in the ecclesiastical Court. 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loosed a vinculo. Or S. Where either of the 'parties was under the age of consent at the time of the first marriage, for in such case the first marriage was voidable by the disagreement of either party, which the second marriage very clearly amounts to.”

If the crime of bigamy be not a felony by our law, then it is clear the present indictment is fatally defective; for *168it is well settled, in this State that it is not allowable to charge a misdemeanor to have been feloniously committed. Black vs. The State, 2 Md., 376. And whether, by the law of this State, bigamy be a felony or not, depends upon the question whether the Stat. 1 Jac. 1, c. 11, be in force as part of our law. It is contended on the part of the plaintiff in error that it is not in force; that by the Crimes Act of 1809, c. 138, sec. 7, the Statute of James was abrogated, and hence Chancellor Kilty, in his report of the British statutes, made to the Legislature in 1810, classified that Statute among those found applicable but not proper to be incorporated with those reported to be in force. Was Chancellor .Kilty correct in supposing as he did that this Statute of James had been abrogated by the Act of 1809, and therefore no longer in force ?

There can be no question but that this statute had been in force prior to the Act of 1809. It had been expressly adopted, and each and every article, clause, matter and thing in said Act contained, had been declared to be in force here, by the Act of the provincial Legislature of 1106, c. 8. By the Declaration of Rights, adopted in 1116, it was declared that the people of this State were entitled to the benefit of such of the English Statutes as existed at the time of their first emigration, and which by experience had been found applicable to their local and other circumstances, and of such others as had been since made in England, and had been introduced, used and practised by the Courts of law or equity; and the same declaration has been substantially repeated in all subsequent Constitutions of the State. Seeing then that this statute had been expressly adopted by the provincial Legislature, as one applicable to the local and other circumstances of the people, and that it was continued in force after the Revolution and the province had become an independent State, it is still in force, unless repealed or modified by some positive legislation of the State.

*169Row the only Act of this State which is supposed to have effected a repeal of the Statute of James, is the Act of 1809, c. 138, sec. 7, now found in the Code, Art. 30, sec. 11. But, it must he remembered, it was not a principal object of the Act of 1809 to prescribe offences and define the elements of crime. Its great object was, as declared upon its face, to establish a justly proportioned scale of punishments for existing crimes; and hence, in the first enacting clause, it was declared that the offences therein after mentioned against the government and the supremacy of the laws, should he punished in the manner following. Offences at the common law were to he defined as that law defined them, and offences created by previous statutes were left to their former statutory definition, except in some few instances, where modifications were made in the nature and elements of the crime, and some acts that were not crimes by any previous law were then made criminal for the first time. But in respect to the crime of bigamy or polygamy, while the Act mentions the several acts that constitute the crime, it neither declares the offence to he a misdemeanor nor a felony, and it uses no negative or restrictive terms in regard to any previous law. If it had been a felony at the common law, it would have remained a felony after this Act, and so, being a felony by a previous statute, which was in force at the time, it remained a felony; there being nothing in the Act of 1809 to negative the quality or grade of the crime as declared by Stat. 1 Jac. 1, c. 11. Besides, the clause in the Act of 1809 in relation to the crime of bigamy, and now in the Code, does not embrace all the exceptions contained in the Statute of James, relieving the parties from the consequences of a second marriage, during the life of the first wife or husband. The 3rd, 4th and 5th exceptions contained in the provisos, as stated by Blackstone, are not referred to in the Act of 1809; and these exceptions are of essential importance in determining the *170guilt of the party in cases where the facts constituting the exceptions could he shown to exist. We are of opinion, therefore, that the Stat. 1 Jac. 1, c. 11, is still in force in this State, modified by the Act of 1809, as to the punishment for the offence, hut not as to the grade of the crime; and that Chancellor Kilty was in error in supposing that the Statute of James had been wholly abrogated by the Act of 1809, c. 138. The latter act not only modifies the punishment prescribed by the Statute of James, hut it declares certain incidents and consequences of conviction, not provided for in the British Statute.

2 and 3. Then, as to the second and third objections, taken to the indictment, we think they are not well founded. It was not necessary to the sufficiency of the indictment that it should have alleged, either that the party indicted knew at the time of the second marriage that his former wife was then living, or that she was not beyond seas, or that she had not absented herself, for the continuous period of seven years, before the second marriage. Where there is an exception so incorporated with the enacting clause of the statute, that the one cannot he read without the other, there the exception must be negatived in the indictment. But that is not the case with the statutes under consideration. Here the enacting clause of both statutes is perfectly complete, and the provisos, making the exceptions, follow as distinct clauses of the statutes. In such case, it is not necessary to negative the exceptions in the indictment, but the facts raising the exception relied on must come from the defence. Steel vs. Smith, 1 B. & Ald., 38; Bode vs. The State, 7 Gill, 326; Rawlings vs. The State, 2 Md., 201, 211. Moreover, the indictment used in this case appears to be in exact conformity to the approved precedents under the Stat. 1 Jac. 1, c. 11. 3 Chit. Cr. L., 721; see, also, Murray vs. The Queen, 7 Adol. & El., 700. If, upon the trial, it had been proved by the accused that he and his first wife had lived *171separate and apart for the period of seven years immediately preceding the second marriage, it would then have heen incumbent on the prosecution' to have shown that during that time he was aware of her existence; and, in the absence of such proof he would have heen entitled to an acquittal. But that is a principle to he applied to the proof, and not to the frame of the indictment. Reg. vs Curgerwen, L. R., 1 Cr. Cas. Res., 1.

(Decided 19th December, 1878.)

It follows that the judgment on the demurrer must he affirmed.

Judgment affirmed.