State v. Palmer

18 Vt. 570 | Vt. | 1846

The opinion of the court was delivered by

Williams, Ch. J.

The indictment, in this case, charges, that the respondent, on the nineteenth of July, 1819, married one Hannah Parkhurst, at Whitestown, in the state of New York, and that he afterwards, at Littleton, in the state of New Hampshire, on the sixth of May, 1843, married one Jane Cheney, and that he continued to cohabit with the latter woman, in this state, to the time of finding the indictment, — his first wife being then and still living. The .respondent was found guilty and filed a motion in arrest of judgment.

We are of opinion, that the indictment is insufficient. The second marriage being in the state of New Hampshire, of whose laws we cannot judicially take notice, the respondent committed no offence against the laws of this state by such marriage; and, unless that marriage was unlawful by the laws of New Hampshire, Jane Cheney became his lawful wife, and perhaps the woman, to whom he was formerly married, by the same law ceased to be his wife. It could be no offence in him to cohabit, in this state, with the woman to whom he was lawfully married. There should, therefore, have been an allegation, that the second marriage, in New Hampshire, was unlawful, or the respondent committed no offence, by continuing to cohabit with the woman in this stale. We are of opinion, that, without such an allegation, the indictment cannot be sustained. If the second marriage had been in this state, inasmuch as it was illegal, the former wife being living and the lawful wife of the person charged, the illegality of the second marriage would have been apparent, and the court could have judicially recognized its illegality.

There is another objection raised to the indictment, which we are not disposed to decide at this time, with the limited means and time which we have for investigating it, — that is, whether the indictment should not have alleged, that the respondent was not within any of the exceptions, named in the providing clause. ■

The general rule is, that, when the exceptions are contained in the enacting clause, the indictment must negative them, and state that the respondent does not come within them ; but when they are contained in a separate section, the respondent must show, in defence, that he comes within them. There is certainly great plausibility in the argument, that, as the exceptions are mentioned in the enacting clause of the fifth section, referring to the next section for the particulars, it should have been alleged, that the respondent was not within them. This point, however, is not decided.

It may also be worthy of some consideration, whether some farther legislation is not necessary, to provide for a case, where both marriages are in a foreign government, the party continuing to cohabit with only one wife in this state. It is evidently a case not specially provided for, although the terms of the statute may be broad enough to reach such a case, if the second marriage was illegal.

The judgment is arrested and the respondent discharged.