29 Vt. 60 | Vt. | 1856
The opinion of the court was delivered by
The respondent, under several counts in this indictment, has been convicted of the crime of bigamy. His marriage at Sydney, in the state of New York, with Lodema Spickerman, his former wife, by James Hewson, acting as justice of the peace, was proved by witnesses who were present and witnessed the marriage ceremony. The proof was sufficient, prima facie at least, that Hewson was regularly appointed to that office. For several years previous, as well as at that time, he had been, and was in the discha ge of the duties of such justice, and was generally reputed to be such in that vicinity. In 1 Greenl. Ev., sec. 92, the rule is given: “ That it is not necessary to prove the written appointment of public officers. All who are proved to have acted as such are pi’esumed to have been duly appointed to the office, until the contrary appears, whether in a civil or criminal case.” That is the English rule, and which has been generally recognized in this country. Hopley v. Young, 8 Ad. & Ellis, N. S. 63; 17 Conn. 585; 9 Wend. 17. The same observations may be made in relation to the second marriage of the respondent with Eliza Guernsey, at Saratoga, in the state of New York, by the Rev. Mr. Woodbridge. The actual celebration of that marriage by Mr. Woodbridge, and that he was known and reputed to be a minister in that place, was proved by a witness present at the time
In relation to the admission of the revised statutes of New York, the rule is now well settled in this and other states, that such statute books, purporting to be published under the authority of the state, are competent proof of its statute law; Young v. Bank of Alexandria, 4 Cranch 381; Raynham v. Canton, 3 Pick. 295; Muller v. Morris, 2 Barr 85; Danforth v. Reynolds, 1 Vt. 265. Whether the reports of adjudged cases, accredited in the state where made, can be used for the purpose of proving its common and unwritten law, is not a question ax-ising in the case; for though they may have been used for that purpose on the trial of this case, no exceptions were taken for that matter. The exceptions are confined to the admission of the revised statutes. "We perceive no error in the ruling of the court, on any matter which arose on the trial of this case before the jury.
A more difficult question arises on the motion in arrest. It is insisted, that it should have been alleged in the indictment that the respondent was not within any of the exceptions mentioned in the act. This objection is urged as fatal to all the counts in the indictment. The Compiled Statutes,560, sec. 5, provides that: “If any person who has a former husband or wife living shall marry another person, or shall continue to cohabit with such second husband or wife in this state, he or she shall, except in the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall be punished,” &c, Section 6th then provides : “ that the act shall not extend to any person, whose husband
The fifth section of the act on which this indictment is drawn contains the enacting clause; in which the exceptions are made of those cases which are specified in the sixth section. The cases excepted do not define or qualify the offense created by the enacting clause. If the facts are alleged in the indictment, and proved on trial, that the respondent had a former husband or wife living, and married another person, or continued to cohabit with such second husband or wife in this state, the offense is fully made out. A prima facie case is stated and proved. If, in fact, the former husband or wife of the respondent had been continually beyond the sea, or out of the state for seven years together, and the respondent had married again, not knowing the other to be living within that time, or if the respondent had been divorced, or the marriage had been declared null and void by the sentence of a court, or if the former marriage was within the age of consent, and not afterwards assented to, those facts should be relied upon and proved by the respondent in his defense. As was observed by the court in the case State v. Barker, 18 Vt. 197, “the facts are peculiarly within the knowledge of the respondent,” and the onus of their proof should rest on him.
The sixth section declares that: “ The provisions of the preceding section shall not extendi to any person,” &c. This is strictly an exception, and “ that which is excepted out of an act is out of its provisions; ” as much so, as if the act had never been passed. Cases excepted from the act necessarily do not define, qualify, or in any way affect the provisions of the enacting clause. It is a