35 N.C. 289 | N.C. | 1852
The Court considers the first instruction right. The offence consists in the second marriage, and therefore it must be truly laid, in respect of the place, and the indictment must be in the same county. The first marriage must, indeed, be set forth; because the second marriage is criminal, by reason only, that the first wife was living. But, if she was living, the crime is complete, without regard to the place where the first marriage was had. Therefore, although time and placeare, according to the precedents, usually annexed to every fact alleged in an indictment, yet, in this instance, neither is material, and the one need not be proved, as laid, more than the other; but it is sufficient to show, that, at some time before the alleged second marriage, there was at some place the alleged first marriage.
The second point depends upon the meaning to be given to the marriage act, Rev. St. c. 71. It enacts that all regular ministers of the Gospel, of every denomination, having the cure of souls, shall be authorized to solemnize the rites of matrimony, according to the rites and ceremonies of their respective churches, and agreeably to the rules in the act prescribed. It then prescribes that marriage shall be by license, or by publication of bans by any minister of the Gospel, qualified as in the act before prescribed. It was not directly stated, by the witness in this case, that he was such a minister as had power, according to the rules of his church, to join in wedlock, nor in what grade of the ministry of that church he was. He called himself a ‘(licensed preacher,” and then “a regular minister,” and said he occasionally preached in Methodist churches, but had not the charge of any church or congregation in particular; and he did not set forth that he had ever performed any other ministerial act besides that of preaching, or had the authority of the church to do so» It seems to the Court, it did not sufficiently appear, that the-
By the marriage act of 1741, Davis’ Rev. 56, the rites of matrimony might be celebrated by ‘‘every clergyman of the Church of England,” and for want of such, by any lawful magistrate within this government, by license or “ by the publication of bans as prescribed in the Rubrick in the book of Common Prayerthe magistrate, however, not to marry, under a penalty, “in any parish where a minister shall reside and have a cure,” without permission from such minister, and “ the minister having the cure of any parish,” and not refusing to perform the ceremony, to have the fees for marriages, in the parish, by any other person. In an act in 1765, for establishing an orthodox clergy, provision of a salary and also of fees, including fees for marrying by license or bans, was made for “ every minister prepared to or received into any parish, as incumbent thereof,” but any clergyman “ presented to a parochial living” was for crime or immorality made subject to suspension by the Governor from “serving the cure of such parish, whereof he was
. It was not necessary, therefore, to the validity of the marriage, that the witness should appear to have been a minister in charge of a church, or the rector of a parish, or pastor of a particular flock But it is necessary, that he should have appeared to be a minister, capable of entering 'upon the duties of such a charge, according to the ecclesiastical economy of his church, with the faculty of celebrating, the rites of matrimony. Perhaps, that ought to have appeared, affirmatively, either upon the evidence of the'witness,.or otherwise. ..At all events, if -his capacity in that respect was left doubtful upon the evidence, it was
Pee Curiam. Judgment reversed, and venire de novo.