50 Md. 161 | Md. | 1878
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
If the crime of bigamy be not a felony by our law, then it is clear the present indictment is fatally defective; for
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.
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
It follows that the judgment on the demurrer must he affirmed.
Judgment affirmed.