[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 331 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 and cases, which are arranged in six classes. They embrace 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 *Page 332 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 exceptions.
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 *Page 333 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 ThePeople 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 *Page 334 the exceptions. That was matter of defence, to be made out by the prisoner, if he was able to do it. Mr. Archbold's treatise, already referred to, which, without doubt, conforms to the existing practice on criminal trials in England, lays down what evidence it is necessary for the prosecution to produce upon indictments for bigamy, and what the defendant may show in his defence. The fact of the continued absence of the former husband or wife, or a divorce dissolving the former marriage, are set down as evidence to be given by the defendant, but no allusion to the necessity of the prosecution negativing these circumstances is made. (Archb., 595.) It is, moreover, a general rule of evidence, that where the negative of an issue does not permit direct proof, or where the facts come more immediately within the knowledge of the defendant, the onus probandi rests upon him. The cases upon this principle are referred to in Cowen Hill's Notes (p. 490, note 383, ed. of 1843). Among the cases are the familiar ones of a physician practicing without a license, and the selling of spirituous liquors without license. The prosecution need not prove the want of the qualification. The circumstances referred to in the 9th section of the bigamy act are highly exceptional and of rare occurrence, and rest peculiarly in the knowledge of the defendant. I think it clear, that after the prosecution has proved successive marriages of the defendant, and that the first husband or wife was living when the second marriage took place, the case of the prosecution is primafacie made out, and that it then lies with the defendant to show that he is protected by one or other of the exceptions. This consideration, while it disposes of the specific objection, taken on the trial, to the want of negative evidence, tends strongly to show that the defendant could not be misled by the allegations of an indictment which plainly stated all that the prosecution was bound to prove, though it did not negative the existence of circumstances which the defendant was at liberty to bring forward in his defence. Hence, I am in favor of holding the indictment sufficient.
There is no force in the position, that the prosecution was *Page 335 obliged to prove the language used by the married parties and the officiating clergyman, on the occasion of the marriage ceremonies. Prima facie the fact of a marriage, celebrated according to the forms of a religious denomination, embraces the requisite assent of the married parties to take each other as husband and wife; and if the party, whose interest it is to dispute the marriage, is satisfied with a general statement of the ceremony, and will not inquire more particularly as to what took place, he cannot be permitted to deny the apparent effect of the evidence. I am in favor of affirming the judgment of the Supreme Court.