28 Ind. 34 | Ind. | 1867
— The indictment, which was for bigamy, alleged that the defendant, “ on,” &c., “ at,” &c., “ did unlawfully, feloniously arid knowingly, being married, marry again to one Charlotte F., his former wife Catherine H., alias Elizabeth H., being then and there alive,” &c.
It is objected that the indictment ought to have alleged the time and place of the first marriage, by whom it was solemnized, and the maiden name of the first wife. And so it is said are the forms, which are some evidence of what the law is. In Vermont, these allegations were held to be necessary. It was there said: “ This is merely formal and of the least possible importance, but unless all form is to be disregarded, which we could not do without a statute to that effect, after having so long regarded it as essential, then this indictment is fatally defective.” State v. LaBore, 26 Vt. 765. Undoubtedly there could be no reason, save that of form, for such particularity; and the Vermont case, which, so far as we are aware, is the only one where it is adjudged to be necessary, puts it upon that ground exclusively. But our statute dispenses with needless forms, and therefore makes this indictment sufficient. 2 G. & H., §§ 59, 60, p. 403. The absence of the averments alluded ;to cannot, it is very certain, “prejudice the substantial rights of the defendant upon the merits.” It was adjudged in North Carolina, even in the absence of such a statute as ours, that it was not necessary to aver the time and place of the marriage. State v. Bray, 13 Iredell 289. Mr. "Wharton, in his Precedents, (2 Ed. 993,) gives a form drawn by the attorney general of Pennsylvania, in 1790, in 'which the existence of the first marriage is alleged almost
The judgment is affirmed, with costs.