State v. Palmer

An indictment for polygamy, under the statute of this state, which alleges that both marriages were had in another state, and that the respondent has feloniously cohabited with his second wife in this state, must allege, that the second marriage was unlawful in the state where it was had; and if this allegation is omitted, judgment will, on motion, be arrested. Where the section, in the statute, which declares an act to be a crime, refers to certain exceptions, as being specified in another distinct section of the statute, quaere, whether those exceptions should be negated in the indictment, or whether the respondent should bring himself within them by his evidence.*

Indictment for polygamy. The allegations were, that the respondent, “ on the eighth day of July, 1819, at Whitestown, in the ' county of Oneida and state of New York, did marry one Hannah ‘ Parkhurst, and her, the said Hannah, then and there had for his ‘ wife, and to her, the said Hannah, then and there was married, ‘ and that the said William Palmer, afterwards, to wit, at Littleton, ' in the county of Grafton, and State of New Hampshire, on the ‘sixth day of May, 1843, did marry and to wife did take one Jane ‘ Cheney, and to her, the said Jane Cheney, then and there was ‘ married, — the said Hannah, his former wife, being then and still ‘ alive, — and that the said William Palmer, at said Lunenburgh, in * said county of Essex, from said sixth day of May, 1843, till the ‘ finding of this inquisition, feloniously did continue to cohabit with ‘ said Jane, his second wife, the said Hannah, his former wife, being * then and still living, contrary,” &c. After a verdict of guilty the respondent moved in arrest of judgment, assigning, as causes, that it was not alleged in the indictment, that he knew his alleged former wife was living, at the time of his marriage to his second wife, or that he knew she was living at the time of his alleged cohabiting with his second wife, — that it was not alleged, that, at the time of his second marriage, he knew that his marriage with the said Hannah Parkhurst was subsisting and valid, —and that the indictment was, in other respects, informal and insufficient. The county court overruled the motion in arrest. Exceptions by respondent. An indictment for an offence against the statute must, with certainty and precision, charge the respondent with having committed, or omitted, the acts, under the circumstances and with the intent mentioned in the statute. Arch. Cr. PL 51. The statute exceptions, in this case, should have been stated in the indictment. Ib. 53. 3 Yt. 157. 1 Chit. Cr. Law 204, 205. The indictment does not allege the former marriage to have been legal, nor the second marriage to have been illegal, as it should have done. It should have been alleged, that the former wife had not been continually out’ of the state for seven years together, nor beyond the sea. The indictment should also have alleged, that the second marriage was in violation of the law of New Hampshire. 2 Pick. 139. 1 Chit. Cr. Law 284, 285. 3 Vt. 157. The fact, that the respondent was ignorant, that his former wife was living at the time of his marriage and cohabitation with the second wife, would not avail him, unless that ignorance had been continuing for the space of seven years previous. Rev. St., c. 99, § 6. And then it would be matter of defence, not necessary to be negated in the indictment; it is for the respondent to show himself within the excepted cases. 1 Chit. Cr. Law 283. Arch. Cr. PI. 53. The validity of the first marriage need not be alleged, but must be proved, on trial; and, the contract being one for life, the statement of the existence of the parties at the time of the second marriage is sufficient, from which to presume, that the first marriage was then subsisting, and, of course, valid. Arch. Cr. PL 474-476. If, in fact, not subsisting, it is matter of defence, and for the respondent to prove. Arch. Cr. PL 53. Rev. St., c. 99, § 6. It is immaterial where the second marriage was contracted, if the cohabitation be in this state.