| Mass. | Jan 6, 1893
The defendant was indicted for polygamy under Pub. Sts. c. 207, §§ 4, 5. The first part of the indictment is in substance that the defendant, at Portland in- the State of Maine, unlawfully married one Carrie B. Tracy, being then the lawful husband of one Mary A. Burk, who was alive, and from whom he had not been legally divorced. The defendant offered in evidence what purported to be a copy of the record of the Supreme Judicial Court of the State of Maine, at a term held at Auburn, within the county of Androscoggin, on the third Tuesday of September, A. D. 1890, in a cause of divorce in which Thomas M. Lucas of Auburn, in said county, husband of Mary A. Lucas, was the libellant, and the said Mary A. Lucas was the libellee, in which it appears that the libel alleged that they were married “at Brockton in the State of Mass., May the 6th, 1876, by Rev. Father Doherty.” It also appears therein that the libellant gave “ notice of his said libel to the said Mary A. Lucas, pursuant to the order of court thereon, . . . but the said Mary A. Lucas, though solemnly called to come into court, does not appear, but makes default ”; whereupon the court found that the material facts alleged in the libel had been proved to its satisfaction, and granted a divorce from the bonds of matrimony, “ for the cause of utter desertion continued for more than three years, as set forth in the libel.” The copy, purports to be attested by the clerk of that court, but it does not appear by the exceptions whether the seal of the court was annexed, although the exceptions recite that it was duly authenticated. See Pub. Sts. c. 169, § 67. This copy was rejected by the court, on the ground that there was no evidence “ that the defendant was the same Thomas M. Lucas named in said record.” The exceptions recite that “ Mary A. Lucas, formerly Mary A. Burk,” had previously been called as a witness by the Commonwealth, and had testified, “ that on the 10th day of May, in the year 1876, she was united in marriage with the defendant, whom she saw in
The only other exception which has been argued by the counsel for the defendant relates to his request that the court rule “ that the word 1 cohabit,’ in the statutes of this Commonwealth relating to the crime of polygamy, means more, and something different from the living or residing together of two parties in the same house; it means such a continuous living or associating together as is common and usual between husband and wife, and would warrant a jury in the belief that they had the sexual relations with each other that husband and wife ordinarily have.” The court refused this request, and ruled “ that the government need not prove actual sexual relations between the parties; that it would be enough if they lived together openly, and defendant held himself and said Carrie B. out as husband and wife, and that the word ‘ cohabit ’ in the statute did not necessarily imply actual sexual relations.” The exceptions recite that said Carrie B. Lucas testified “ that after she and the defendant came to this Commonwealth no act of sexual intercourse ever took place between her and him in said county of Plymouth.”
Section 4 of Pub. Sts. c. 207, provides that “ whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this State, shall, except in the cases mentioned in the following section, be deemed guilty of polygamy,” etc. The indictment in the present case not only alleges that the defendant, at Portland, in the State
Whether the evidence recited in the exceptions is sufficient to warrant the jury in finding that the defendant lived with Carrie B. Tracy as his wife is a question not before us.
-Exceptions sustained.