In an indictment for bigamy, it is unnecessary to negative the exceptions, although they are referred to in the section defining the offence. (2 R. S., p. 687, § 8 et seq.) As matter of pleading, as well as proof, it lies upon the defendant to bring himself within the exceptions.

The statute (2 R. S., p. 728, § 52) cures the formal defect, if it were one, of not negativing the provisos.

General evidence that a marriage was celebrated according to the forms

of the Church, or of a religious sect, implies the requisite assent of the parties. It is for the prisoner to go into particulars and negative their declaration of assent, before he can deny the apparent effect of the evidence.

THE plaintiff in error was convicted of the offence of bigamy in the Court of General Sessions of the Peace, of the city and county of New York, and was sentenced to imprisonment in a State Prison. The judgment having been affirmed in the Supreme Court, the convict procured a writ of error and brought the case here.

The indictment charged, with the requisite certainty of time. and place, that the accused married one Rowena Baldwin in 1855, and that afterwards, at a day named, in 1861, he mar SMITH.-VOL. XIII.

42

Fleming v. The People.

ried and took to wife, in the city of New York, one Jane A. Brett, "the said Rowena being then and there living and in full life, against the form of the statute," &c. On the trial, the defendant called the Rev. Dr. Jones, a clergyman of the Protestant Episcopal Church, who testified that on a day which he mentioned, in the year 1855, he married the defendant and Rowena Baldwin, at the house of a Mr. Perryman, in Stanton street, in New York, according to the church ceremonies, and that Mr. Perryman and fifteen or twenty persons were present. The defendant's counsel put this question to the witness: "Have you any distinct and independent recollection of any thing that happened on that day ?" To which he answered: "If I am asked as to the particular day of the month, I cannot, independent of my record, speak of that; but if I am asked in reference to performing a marriage ceremony between two parties, in Stanton street, in Mr. Perryman's house about that time, I can speak from recollection." The cross-examination was not further pursued.

Other witnesses on behalf of the prosecution testified that they were present at Perryman's house in November, 1855, and saw the defendant married, by the Rev. Dr. Jones, to Rowena Baldwin, on the occasion testified to by said Jones, and that the defendant and said Rowena for some time after lived together as husband and wife. None of the witnesses testified to anything that was said by the defendant or Rowena Baldwin, or by the clergyman, on that occasion, and no inquiries on that subject appear to have been made, further than has been mentioned. The prosecution examined Jane A. Brett, without objection, who swore that on the 31st December, 1861, a ceremony of marriage was performed between the defendant and herself, at No. 280 Second street, New York, by W. N. Collins, a Methodist minister, and that certain persons, whom she named, were present. She said it was a regular marriage ceremony, which was performed by the minister, and that she had a party at home. Two persons named by her as having been present, testified to the fact of the marriage, in the same general manner, and they identified.

Fleming v. The People.

the married parties, they being present at the giving of the testimony, and they said that the place of the marriage was the clergyman's residence.

After the close of the testimony, the defendant's counsel requested the jury to be instructed, in substance, that the prosecution had not given sufficient proof of the alleged marriages,! because it had not shown what language was used by the offici ating clergyman and by the parties to the alleged marriage, on the occasions referred to, and, moreover, that they should be instructed that the prosecution was obliged to negative, by proof, the exceptions mentioned in the ninth section of the statute relating to bigamy. The judge refused to give the instructions asked for, or either of them, and the defendant excepted. Verdict of guilty and judgment as above stated.

H. L. Clinton, for the plaintiff in error.

A. Oakey Hall (District Attorney), for The People.

DENIO, Ch. J. The only question upon which any doubt can be entertained in this case relates to the sufficiency of the indictment. The statute declares, that every person having a wife living, who shall marry any other person, except in the cases specified in the next section, shall be adjudged guilty of bigamy," &c. (2 R. S., 687, § 8.) The next section declares, that the preceding one "shall not extend to" " certain persons

certain

They embrace

and cases, which are arranged in six classes. only cases where the former husband or wife shall have been absent for five successive years, without being known to the party accused, within that time, to be living: or shall have been absent from the accused, and been continually remaining without the United States, for five years together: where the former husband and wife have been divorced for a cause other than the adultery of the accused: where a judgment of nullity of the former marriage has been pronounced: where such former marriage has been annulled for having been entered into by the accused within the age of legal consent; or where the

Fleming v. The People.

former husband or wife of the accused has been sentenced to imprisonment for life. The objection is, that the indictment is insufficient on account of not having negatived these excep tions.

The indictment is in the precise form in use in England; but, in the British statute, the exceptions, which are, for the most part, the same as in ours, are introduced by way of proviso, thus: "Provided always, that nothing herein contained shall extend," &c. (Arch. Crim. Pl., 592.) Although, in our act, the exceptions are enumerated in a section subsequent to the one creating the offence, they are, as we have seen, referred to in the enacting clause, and I think the effect is the same as though they had been enumerated in that clause. It is a virtual incorporation of them in the enacting clause. The distinction between a proviso, not referred to in the enacting clause, and a reference in that clause to exceptions subsequently enumerated, was incidentally considered by the judges of the Court of King's Bench, in Steel v. Smith (1 Barn. & Ald., 94). That was the case of a proviso like the one in the British bigamy act; and it was held that the pleader need not notice it. The chief justice said: "There are not, in this case, any words of reference or virtual incorporation; but this is a distinct and substantive proviso." And ABBOTT, J., said: "Here are not in the enacting clause, any words such as 'except as hereinafter provided." If any such words had been introduced, it might fairly have been contended that the subsequent proviso was incorporated with the enacting clause; and then the objection might have been supported." The general rule of criminal pleading is, that where there is an exception or qualification in the enacting clause of a statute, to the effect that, in certain cases or under certain circumstances, the offence is not to be considered as committed, these must be negatived in the indictment. (Arch., p. 49; Commonwealth v. Maxwell, 2 Pick., 139; State v. Palmer, 18 Verm., 570.) I am of opinion, therefore, that this indictment is formally defective. Perhaps the defect is one which, in a technical sense, would be termed substantial; but I do not think it is such, within the meaning

Fleming v. The People.

of the Revised Statutes upon the subject of indictments. It is there provided, that no indictment shall be deemed invalid, nor shall any trial, judgment, or other proceeding thereon, be affected by reason of any defect or imperfection in matters of form, other than those which are enumerated, which shall not tend to the prejudice of the defendant. (2 R. S., 728, § 52.) The operation of this statute upon indictments, in some respects defective, has been several times before the courts. The People v. Rynders (12 Wend., 425) was an indictment for forgery, under the statute which defined the crime to be the counterfeiting an instrument purporting to be the act of another; but that part of the description was omitted, though the instrument was set out. It was considered that the indictment was, to a certain degree, imperfect, but it was held to be cured by this statute. That case was followed by Charles v. The People, decided in this court. (1 Comst., 180.) The indictment was against the proprietors of a newspaper, for advertising tickets in an illegal lottery, but it failed to aver that the lottery was one the object of which was to dispose of money or property, though that was parcel of the statute description of the offence. The advertisement which was set out, however, showed this. The conviction was sustained on the authority of The People v. Rynders. The case of The People v. Powers, also in this court (2 Seld., 50), is much stronger. The indictment was for a second offence of petit larceny, but it failed to set out facts sufficient to show jurisdiction in the magistrates before whom the first conviction was had. This was clearly a matter of substance, according to technical rules, though it could not be pretended that the defendant was misled as to the crime of which he was accused. It was, however, considered a defect of form within the meaning of this statute, and the judgment against the prisoner was affirmed.

To show more fully the formal character of the defect in the present case, and at the same time to answer another objection taken on behalf of the plaintiff in error, it will be material to state, that the prosecution was under no necessity of giving evidence to show that the case was not within any of