State v. Abbey

29 Vt. 60

Opinion

The opinion of the court was delivered by

Isham, J.

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 of that marriage. The declarations of the respondent, made a few days after the marriage, and immediately after he came to this state, that Eliza was his wife, that they were married at Saratoga by the Rev. Mr. Woodbridge, was competent evidence, not only of his identity, but of that marriage. Regina v. Simmousto, 1 Car. & Kir. 164, note (a.); Truman’s case, 1 East. P. C. 470; 2 Stark Ev. 894. The certificate of the officiating minister would not probably he evidence of the marriage when offered for that purpose on the part of the state; but when it was. referred to by the respondent as evidence of the truth of his declarations, it was properly received in connection with those declarations, to show that he was the person who, under the name of Lyman A. Abbott, was at that time married to Eliza Guernsey.

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 or wife has been continuously beyond the sea, or out of the state for seven years together, and the party marrying not knowing the other to be living within that time, nor to persons divorced, or when the marriage has by decree of the court been declared null and void, nor to persons when the former marriage was within the age of consent, and not afterwards assented to. This question, and under this statute, was referred to in the case State v. Palmer, 18 Vt. 573, but left undecided. It was justly said in the case of Smith v. Moore, 6 Greenl. 274, that on this subject, “there seems to be many shadowy distinctions, the sound reason and good sense of which are not easily discoverable.” The general rule is thus given: “ if there is an exception in the enacting clause, the party must negative the exception, and state in the indictment that the respondent is not within it; but if there be an exception in a subsequent clause, or subsequent section of the statute, it is a matter of defense, and is to be shown by the other party.” 18 Vt. 573, 197; 17 Vt. 149. The rule is founded on the general principle, that the indietment must contain the statement of those facts, which -constitute an offense under the statute. A prima facie case must be stated; and it is for the other party for whom matter of excuse exists, to bring it forward in his pleading or defense. In saying that an exception must be negatived when made in the enacting clause, reference is not made to sections of the statute, as they are divided in the act; nor is it meant, that, because the exceptions are contained in the section containing the enactment, it must for that reason be negatived. That is not the meaning of the rule. The question is, whether the exception is so incorporated with, and becomes a part of the enactment, as to constitute a part of the definition or description of the offense ; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner. “ It is the nature of the exception and not its location,’’ which determines the question. Neither does the question depend upon any distinction between the words “provided” or “except’’ as they may be used in the statute. In either case, the only inquiry arises, whether the matter excepted, or that which is contained in the proviso, is so incorporated with, as to become, in the manner above stated, a part of the enacting clause. If it is so incorporated, it should be negatived, otherwise it is a matter of defense. These rules are sustained by the authorities as they are collected in 8 Amer. Jurist 233, and 1 Lead. Crim. Cas. 255, and note. It is said, that there is a middle class of cases, namely, where the exception is not in express terms introduced into the enacting clause, but only by reference to some subsequent clause, or prior statute; as where the words “ except as hereinafter mentioned,” or words of similar import are employed; and that in those cases the exceptions must be negatived. 1 Lead. Crim. Cas. 260. The statute on which this indictment is framed has in the sectioa of its enactment a reference to the subsequent section for an enumeration of the cases to which the act does not extend. This case would seem to fall within that classification. The necessity in such cases of negativing the exceptions in. the indictment, cannot arise from the mere fact that a reference to the excepted cases is made in the section containing the enacting clause. There is no greater reason in that rule, than in saying, that the exceptions of a statute must in all cases be negatived, because they are placed in the section containing the enacting clause, as they may be divided in the act; a rule, discarded by elementary authors, as well as by adjudged eases. The same principle should govern this class of cases which governs other classes, and the exceptions should be negatived only where they are descriptive of the offense, or define it; but where they afford matter of excuse merely, they are to be relied upon in defense. The question is one not only of pleading, but of evidence, and where the exceptions must be negatived in the indictment, the allegations must be proved by the prosecution, though the proof may involve a negative; State v. Butler, 17 Vt. 150. As the same reasons exist in one class of cases that exist in the other, the same principle should apply. The case State v. Barker, 18 Vt. 195, is a good illustration of the rule where the exception in the statute should be and was required to be negatived. Not all labor and business on the Sabbath is forbidden by the statute on which that prosecution was had, but .that only which is unnecessary, and which is not a matter of charity. That .exception defined the kind of labor forbidden, and qualified the whole enacting clause. The same rule was recognized in the case Smith v. Moore, 6 Greenl. 236. It was not every neglect by the executor to file the will within thirty days that constituted the penal matter, but it was the unexcused neglect; thus defining and qualifying the act which constituted the matter for which the penalty was given. To prove that the executor neglected to file the will within thirty days would not make even a prima facie case; it must also be proved that it was unexcused. For that reason it was held the exception should be negatived. The cases Spieres v. Parker, 1 Term 141; Gill v. Scrivens, 7 Term 27, rest upon the same ground. The case of Commonwealth v. Hart, 1 Lead. Crim. Cas. 250, is a forcible illustration of the rule, where exceptions in a statute should be, and where they are not required to be negatived. The act of 1852 in Massachusetts, provided that “ No person shall be allowed to be a manufacturer of any spirituous or intoxicating liquors for sale, or a common seller thereof, without being duly authorized, on pain of forfeiting,” &c. “ Provided, that nothing in the act shall be construed to prevent the manufacture or sale of cider for other purposes than that of a beverage, or the sale and use of the fruit of the vine for the commemoration of the Lord’s Supper.” The words “ without being duly authorized” defined and qualified the act forbidden by the statute. It was not all sales or manufacture of intoxicating liquor which were forbidden, but only such as were unauthorized; hence the want of authority should be averred and proved, though it might involve the proof of a negative. But the matter embraced in the proviso did not define, qualify, nor was it descriptive of the matter prohibited in the enacting clause. When it was álleged in the indictment, and proved on trial, that the respondent was a common seller of spirituous and intoxicating liquors without being duly authorized, the offense was fully made out; a prima facie case was alleged and proved, and it was for the defendant to prove that he was within any of the cases mentioned in the proviso. The case of Steel v. Smith, 1 Barn. and Ald. 94, is of the same character, and is so considered by Metcalf, J., in the case above cited. See also Rex v. Pierce, R. & R. C. C. 174; Rex v. Robinson, ib. 321. In the case of Rex v. Baxter, 2 East P. C. 781, 5 Term 83, the act provided that “in all cases where goods have been stolen, except where the person committing the felony shall have been already convicted, &c., every person, who shall buy or receive such goods, knowing them to have been so taken, shall be deemed guilty,” &c. In this act, it will be perceived that the exception is contained in the body of the enacting clause ; still, it was held that it was matter of defense, and need not be negatived in the indictment. It is difficult to make a distinction between that case and the one under consideration. It may be true, that one of the arguments of Buller, J., is not sustained by later authorities, but we do not perceive that the case itself has ever been questioned in any adjudication of the court in that country, or in this. The doctrine of that case is approved in Archb. C. P. 153; 3 Chitty, C. L. 959, and rests upon the authority of Rex v. Pollard, 2 Ld. Ray. 1370.

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 statutory provision overriding the whole act, that to those cases the act does not extend. In such cases exceptions need not be negatived, but are to be treated as matters of defense, and are to be relied upon by the respondent as such; Lawton v. Hickman, 9 Adol. & Ellis, N. S. 563; 58 Eng. Com. Law 561, 588; Thibault v. Gibson, 12 Mees. & Wels. 94, and note; Simpson v. Ready, ib. 734. The difficulty and impracticability arising from a different construction of the act, is itself a good reason why it should not be adopted; particularly as all the matters embraced in those exceptions are peculiarly within the knowledge of the respondent. This being the only objection taken to the several counts in this indictment, we think the motion in arrest must be overruled.