Post-office marks. On an indict to be complete, as far as depends on the offender, by his putting the letter into the post-office to go into another county; though the party to whom it is sent afterwards receives it in the latter county. (j) The post-office marks in town or country, proved to be such, are evidence that the letters on which they appear were in the office to which those marks belong at the dates which the marks specify; (k) but a mark of double postage paid on any such letter is not of itself evidence that the letter contained an inclosure. (1) The prisoner was tried for feloniously sending to J. S. Tucker ment for send the following letter, with intent to extort money from the said J. S. Tucker : ing a threat ening letter, the prisoner's declarations of the meaning of the letter are admissible in evidence. An indictment on the 4 for sending a letter threatening to accuse of an infamous crime, need not have specified such crime, for the specific crime the prisoner 'SIR, ? 'You perhaps did not expect to hear from me so suddenly; but when you turned me away from Laytonstone for a mere trifle (that too at a time when by the late failures many scores of clerks were out of employ), you forgot that I had you in my power Geo. 4, c. 54, through your transactions with me five nights following (I have the dates and circumstances on paper written at the time), and that from your conduct to me before I went to live with you, you could expect no mercy from me. Did you not, however, let it pass In a few words, I have taken advice upon the subject, and know that, if you are obstinate, it is in my power to bring down ruin on your head, and infamy on your name. However, I will be merciful. Allow me to return to L. in the same manner as before. I will never mention it again, as if I did I should lose everything, and gain nothing; but it is impossible for me to get any situation in town at present. It is not true that Mrs. T. advertised, as you said; she is in great distress, and she is my mother, therefore I would wish to afford her a little relief, if possible; so send me five pounds to my address, which, with the other you lent me, I will I O U for, and pay when I get a place. If I do not hear from you by Saturday morning, you will hear of it (enclosing five pounds). Now, consider ruin and beggary on one side, and wealth and comfort on the other; remember that, if you are obstinate, it will cost you all; do as I say, it will cost you nothing. I wait your answer before I proceed. As yet, I have given Mr. Norris no names. On Saturday night (if you are silent) I will go too far to threatened to charge might intentionally be left in doubt. (m) retract. 'Your's obediently, (Signed) 'JAMES TUCKER, Junr.' The second count charged the prisoner with threatening to accuse the said J. S. Tucker of a certain infamous crime, viz., with attempting and endeavouring to commit the abominable crime of sodomy with the said J. S. Tucker. with the same intent. The third count charged him with threatening to accuse the said J. S. Tucker of an infamous crime, with the same intent. The fourth, (j) 2 East, P. C. c. 23, s. 7, p. 1125. Burn. Just. tit. Letter. And see now the 7 Geo. 4, c. 64, s. 12, vol. 1, p. 5. (k) Perkins's case, 1 Lew. 99, Park, J. A. J. Rex v. Burdett, 4 B. & A. 95. (2) Rex v. Plumer, R. & R. 264. (m) This is the marginal note to the case in R. & M. C. C. R., but it does not appear that any such point was reserved or decided, although such a point might have arisen on the third and sixth counts. C. S. G. fifth, and sixth counts were the same as the former, except that the letter was called a paper-writing, and the direction omitted. The third and sixth counts did not describe the specific crime, but alleged, generally, an infamous crime. All the counts concluded against the statute, &c. The prosecutor, after proving the letter in question, said, that on the Saturday following the Thursday on which he received the letter, he saw the prisoner at a public-house in the Strand, and that he, the prosecutor, asked him what he meant by sending him that letter, and what he meant by transactions five nights following.' The prisoner said that the prose-cutor knew what he meant. The prosecutor denied it; and the prisoner afterwards said, 'I mean by taking indecent liberties with my person.' The prisoner, in cross-examination, asked the prosecutor whether on his oath he could deny that he did take indecent liberties with his (prisoner's) person. The prosecutor said he never did. Alexander, C. B., submitted the following question to the judges, whether parol evidence to explain the letter was properly received? Adding, that without it the prisoner could not have been convicted, and that by his crossexamination he in effect repeated the charge. And all the judges (except Littledale, J., who was absent), were unanimously of opinion that such evidence was properly received, and that the conviction was proper. (n) Where an indictment contained three counts, each charging the sending of a different threatening letter, Byles, J., held that the prosecutor must elect on which count he would proceed, though any letter leading up to or explaining the letter on which the trial proceeded would be admissible. (0) The cases in the Chapter on Robbery may occasionally be referred to with advantage in cases falling within this Chapter.(p) The Court will, after the bill is found, upon the application of the prisoner, order the letter to be deposited with an officer, in order that the prisoner's witnesses may inspect it. (q) (n) Rex v. Tucker, R. & M. C. C. R. 134. We have seen that it has been held, on the trial of an indictment for threatening to accuse a person of an abominable crime, that the jury need not confine themselves to the consideration of the expressions used before the money was given, but may, if those expressions are equivocal, connect with them what (0) Reg. v. Ward, 10 Cox, C. C. 42. (9) Rex v. Harris, 6 C. & P. 105, Lit- Prior and subsequent letters may be given in evidence. 264 CHAPTER THE FIFTH. Present enactment. dealt with OF BIGAMY. THE offence of having a plurality of wives at the same time is more correctly denominated polygamy: but, the name bigamy having been more frequently given to it in legal proceedings, it may perhaps be a means of more ready reference to treat of the offence under the latter title. (a) Originally this offence was considered of ecclesiastical cognizance only; and though the 4 Edw. 1, stat. 3, c. 5, treated it as a capital crime, it appears still to have been left of doubtful temporal cognizance, until the 1 Jac. 1, c. 11, declared that such offence should be felony. The provisions of this statute were in several respects defective. A person whose consort had been abroad for seven years, though known to be living, might have married again with impunity. And so might a person who was only divorced a mensa et thoro. The 9 Geo. 4, c. 31, therefore repealed the statute of James, and that Act is repealed by the 24 & 25 Vict. c. 95. for By the 24 & 25 Vict. c. 100, s. 57, 'Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, (b) shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three (bb) years, or to be imprisoned Offence may be any term not exceeding two years, with or without hard labour, (c) and any such offence may be dealt with, inquired of, where offender tried, determined, and punished in any county or place in England or Ireland where the offender shall be apprehended or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place. Provided that nothing marriages, &c., in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of her Majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall shall be apprehended. Not to extend to second herein stated. (a) Bigamy, in its proper signification, is said to mean only being twice married, and not having a plurality of wives at once. According to the canonists, bigamy consisted in marrying two virgins successively one after the death of the other; or in once marrying a widow. 4 Blac. Com. 163. note (b). And see Bac. Abr. tit. Bigamy, in the notes. (b) See 1 Hale, 692, 693; 1 East, P. C. c. 12, s. 2, p. 465; R. v. Topping, Dears. C. C. 647. (bb) Not less than five years if the offence was committed after the 25th of July, 1864. See vol. 1, p. 73. (c) As to principals in the second degree, accessories, and hard labour, &c., see vol. 1, pp. 178, 80, 81. not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any Court of competent jurisdiction.' (d) The proviso in the new statute contains exceptions in respect Exceptions: of four cases, in which a second marriage is no felony within the statute. The first exception is that the statute shall not extend 'to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of her Majesty.' The second exception is that it shall not extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time.' (dd) Where there has been such absence, the burden of proof is not upon the prisoner to shew that it was not known to him or her that the wife or husband was living within such time. On an indictment for bigamy, it was proved that the prisoner and his wife had lived apart for seven years, and that the prisoner then married again. There was no evidence of the prisoner's knowledge of the existence of his first wife at the time he married again. The prisoner was convicted. Held, that the burthen of proof that the prisoner did not know that his wife was alive at the time he contracted the second marriage was not on the prisoner, and that the conviction could not be sustained. (e) There has been some doubt as to whether if the prisoner had at the time of the second marriage a reasonable and honest belief that his wife was dead (although she had not been absent for seven years) he could be convicted. It was ruled that he could not be convicted by Martin, B., (ƒ) and by Cleasby, B. (g) But Brett, J., after consulting with Willes, J., decided that a bona fide belief that the wife was dead was no defence. (h) The prisoner was convicted of bigamy. The first marriage was with Victor, in the year 1836. The second marriage was with Lumley, on the 9th of July, 1847. The prisoner lived with Victor till the middle of 1843, when they separated, and from that time no more had been heard of him. There was no evidence as to his age. The judge at the trial directed the jury that it was a presumption of law that Victor was alive at the time of the second marriage. Held, that there was no presumption of law that life continued for seven years, or for any other period after the time of (d) This clause is taken from the 9 Geo. 4, c. 31, s. 22, and 10 Geo. 4, c. 34, s. 26 (I). (dd) See 1 Hale, 693. 3 Inst. 88. 4 Blac. Com. 164. 1 East, P. C. c. 12, s. 3, p. 466. Reg. v. Cullen, 9 C. & P. 681; R. v. Jones, C. & M. 614; R. v. Briggs, Dears. & B. C. C. 98; 26 L. J. M. C. 7. (e) R. v. Curgurwen, 35 L. J. M. C. 58; L. R. 1 C. C. R. See R. v. Heaton, 3 F. & F. 819. (f) R. v. Turner, 9 Cox, C. C. 145. See 1st. Second marriage out of England and Ireland by realm. other than subjects of this 2nd. Where husband or wife shall be absent for seven years, and not known to be living. 3rd. Divorce, a vinculo matrimonii. the latest proof of the life of the party, and that it was a question of fact for the jury, under the circumstances of each case, whether a person be alive or dead at any time within the interval of seven years, at the termination of which the protection afforded by statute in cases of bigamy comes into operation, and the conviction was quashed. (i) If a man marries again after his wife has been absent for seven years and shall not have been known by him to be living within that time, during her life, the second marriage is null and void. (j) The third exception provides that the Act shall not extend 'to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage. A divorce, therefore, a mensâ et thoro, which was held sufficient under the 1 Jac. 1, (k) is now no longer an exception. Nor would a judicial separation under the 20 & 21 Vict. c. 85, s. 16, suffice, for it is to have the effect of a divorce a mensa et thoro. (1) It was held under the 1 Jac. 1, that if there be a divorce a vinculo matrimonii, and an appeal by one of the parties, though this suspends the sentence, and may possibly repeal it, yet a marriage pending that appeal will be aided by the exception. (m) In a case upon the 1 Jac. 1, the question arose whether a divorce by the Commissary or Consistorial Court of Scotland would operate so as to excuse a person, who, having been married in England, had been divorced by that Court, and had then married again in England, from the penalties of bigamy. And, from the decision of the judges, it appears, that, if the first marriage has taken place in England, it will not be a defence to prove a divorce a vinculo matrimonii (i) R. v. Lumley, 38 L. J. M. C. 86, L. R. 1 C. C. R. 196, et per cur. In an indictment for bigamy it is incumbent on the prosecutor to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage, and that is purely a question of fact. The existence of the party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date. If, for example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible, that he was living on the latter day, and the jury would in all probability find that he was SO. If, on the other hand, it were proved that he was then in a dying condition and nothing further was proved, they would probably decline to draw that inference. Thus the question is entirely for the jury. The law makes no presumption either way. The cases cited of The King v. Twyning, 2 M. & W. 894; The King v. Harborne, 2 A. & E. 540; and Doe d. Nepean v. Knight, 2 B. & A. 386; appear to us to establish this proposition. Where the only evidence is that the party was living at a period which is more than seven years prior to the second marriage, there is no question for the jury. The proviso in the Act then comes into opera tion, and exonerates the prisoner from criminal culpability, though the first husband or wife be proved to have been living at the time when the second marriage was contracted. The Legislature by this proviso sanctions a presumption that a person who has not been heard of for seven years is dead; but the proviso affords no ground for the converse proposition, viz. that when a party has been seen or heard of within seven years a presumption arises that he is still living. That we have said is always a question of fact. See Murray v. The Queen, 7 Q. B. 700; R. v. Apley, 1 Cox. C. C. 71. (j) 4 B. C. Com. 164, note. (z). (k) 1 Hale, 694. 3 Inst. 89. 1 Hawk. P. C. c. 42, s. 5. 4 Blac. Com. 164. Middleton's case, Old Bailey, 14 Car., 2 Kel. 27. And see 1 East, P. C. c. 12, s. 5, P. 467. (7) See sec. 27 of the Act for the cases in which a marriage may be dissolved. (m) 3 Inst. 89. 1 Hale, 694, citing Co. P. C. c. 27, p. 89, and stating further that if the sentence of divorce be repealed, a marriage afterwards is not aided by the exception, though there was once a divorce. A marriage within the time allowed for an appeal, under the 20 & 21 Vict. c. 85, s. 56, would be void. See Chichester v. Mure, 32 L. J. P. & M. 146. |