The motion to set aside the indictment is granted. Held:
1. That a motion of this character may be made upon grounds other than those specified in section 313 of the Code of Criminal Procedure. People v. Brickner, (O. & T.) 15 N. Y. Supp. 528; People v. Price, (Sess.) 2 N. Y. Supp. 415.
2. That an indictment should not be found unless all the evidence before the grand jury, taken together, would, if unexplained or uncontradicted, warrant a conviction by the trial jury. Code Crim. Proc. § 258.
3. That the alleged prior marriage of the defendant was an essential part of the corpus delicti, as, unless there was a prior marriage in force at the time the second marriage was contracted, there was no crime.
4. That the corpus delicti, or the fact that a crime has been committed, cannot be proved by the oral admission or confession of the accused person, made out of court. Code Crim. Proc. § 395.
5. That, as the only evidence tending to prove the first marriage presented to the grand jury consisted of verbal statements made by the defendant out of court, it follows that they had not sufficient evidence before them to permit the finding of an indictment against the defendant.
6. The order to be entered, however, will provide that the case be resubmitted to the next grand jury summoned for the county of Oneida, and that in the mean time the defendant remain in custody, as provided by section 318 of the Criminal Code, unless he furnishes bail to an amount to be fixed by the court, after hearing the suggestions of the counsel for the respective parties.