Laws

Alley v State, 76 Ind Post Date: Wed, 30 Jul 2008 19:03:47 +0000
That the amount adjudged to be paid by the defendant is excessive is no reason for a new tria L Mcllvain v State, 80 Ind 69 Irregularity of Proceedings in Trial Court. The examination of the rela- trix as a witness, while the court was considering a motion of defendant's attorney to postpone the trial, was held to be an " irregularity; " and re- fusing to call a jury when properly demanded by said attorney was " error of law," within the meaning of the statute concerning new trials (2 Rev Stat, 1876, p 178, 352). Alley v State, 76 Ind 94 Newly Discovered Evidenc e State- ments of the mother of a bastard child, some time after its birth, as to the father's identity can be used as impeaching evidence only, and not as an admission by a party to the action, and therefore will not, as a general rule, constitute cause for a new trial as newly discovered evidenc e Har- per v State, 101 Ind 109 See also, as to newly discovered evidence, Ding- man -v State, 48 Wi S 485 Omission to Enter the Ple A Omission to enter the plea of defendant before the jury was impaneled is an irregular- ity, but not being any prejudice to the rights of the defendant, a new trial will not be granted for that reaso N Hutchinson v State, 19 Neb 262 Prosecution by Public Officer without Leave of Court, after the mother has refused or neglected to proceed, has been held to be no ground for a new trial in Massachusett S Noonan v Brogan, 3 Allen (Mas S) 381 Determination as to Competency of Complainant as Witnes S If such de- termination is erroneous the defendant can avail himself of the error only on motion for a new trial, upon the evi- dence reported by the presiding judg e Jackson v Jones, 38 Me 185 Discrepancy between Verdict and Com- plaint.

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Connelly v People, 81 111 Post Date: Wed, 30 Jul 2008 18:49:09 +0000
After a verdict it is no ground for a new trial that the jury found the child was begotten at a later time than that charge d Beals v Furbish, 39 Me 469 Verdict Contrary to the Evidenc e The court has power, after a verdict and before judgment, on motion and with- out any additional evidence, to set aside the verdict against the evidence and to grant a new tria L Eaton v Elliot, 28 Me 436 Conflicting Evidenc e Where the jury has been properly instructed and the testimony is contradictory an d XIv REVIEW 1 Remedies of Parties Aggrieve d The remedies of persons aggrieved by the decision of the trial court in prose- cutions for the maintenance of bastard children are various in the different state S Thus there may be an appeal, 1 writ or petition of error, 2 certiorari, 3 or petition for revie W 4 2 Parties to Proceedings to Revie W The defendant may have the proceedings reviewed, of course, as likewise may the prosecu- tion in those states where the proceedings are -regarded as civil in their nature, or where proceedings for review by the state are al- lowed by statute in criminal case S 5 So a plaintiff who is dissatis- fied with the amount may seek to have the proceedings reviewed that she may recover a more favorable judgment. 6 Where the de- irreconcilable, a new trial will not be granted by the court. Connelly v People, 81 111 379; Halcomb v People, 79 111 409 1 People v Ontario County Ct, 45 Hun ( N Y) 54; State v Ledbetter, 4 Ire d (N Car) 242; State v Thomas, 5 Ire d (N Car) 366 See article APPEALS, Vo L I I, p 52 2 See article ERROR, WRIT Of See also State v Mushied, 12 Wi S 561; Hobbs v Beckwith, 6 Ohio St 253; Browne v Stimpson, 2 Mas S 445 3 See article CERTIORAR I See also Gile v Moore, 2 Pic K (Mas S) 386; Baster v Columbia T P, 16 Ohio 57; Cross v People, 8 Mich 113; State v Linton, 42 Min N 32; Leconey v Over- seer of Poor, 43 N J L 406; Sweet v Overseers of Poor, 3 John S ( N Y) 4 Where, before the filing of the complainant's declaration, a default has been entered against the defend- ant for nonappearance, he may move to take off the default and set up a defense, if he has any, after the dec- laration has been file d If the de- fault was suffered inadvertently when he had a good defense, his remedy after judgment entered against him is by petition for revie W Priest v Soule, 70 Me 414 5 State v Wilkie, 85 N Car 513; State v Crouse, 86 N Car 617; O'Neal v State, 2 Sneed (Tenn) 215; Pecple v Noxon, 40 111 30; Glenn v State, 46 Ind 368; Walker v State, 6 Blackf (Ind) i; Dibble v State, 48 Ind 470; Galvin v State, 56 Ind 51; Morris v State, 115 Ind 282; McCoy v State, 121 Ind 160; Richmond v Bowen, 54 N H 99 In Wisconsin it was held that ex- ceptions will not lie, under a statute allowing exceptions in criminal case S State v Jager, 19 Wi S 235 New York In an early case it was held that where, on a bastardy trial before two justices, the party charged with being the father of the child is acquitted, an appeal to the Sessions does not lie by the superintendent of the poor of a county from such ad- judication of the justice S People v Tompkins Ge N Session, 19 Wen d ( N Y) 154- Connecticut In bastardy cases an appeal from a judgment on a plea in abatement before the justice cannot be taken by the defendant, but the practice is to allow him to renew the objection in the higher court.

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Madison v Gray, 72 Post Date: Wed, 30 Jul 2008 18:34:45 +0000
Nauga- tuck v Smith, 53 Con N 523 Appeal S Where the mother of a child marries pending an appeal, the proceedings need not be amended by making the husband a party theret O O'Neal v State, 2 Sneed (Tenn) 215 Ratification of Appea L Where an ap- peal has actually been perfected, no matter by whom, the court acquires jurisdiction of the case; and if the prosecuting attorney or his deputy appears in the Circuit Court and prose- cutes the appeal to final judgment, that amounts to an adoption or ratifi- cation of the act of the person who took the appea L McCoy v State, 121 Ind 160 6 Upon a proceeding by a town against the father of a bastard child, the court, under the statute, has no au- thority to order the defendant to pay a weekly sum for the support of the child, such order being authorized only in case of a suit instituted by the mother of the chil d Where such an order had been made it was held that the judgment might be reversed upon fendant brings error the mother need not be made Defendant 1 3 What is Appealabl e The appeal must be from a final determi- nation ; * and the appellate court will not review matters in the discretion of the trial court. 3 4 Appellate Jurisdictio N Appellate jurisdiction varies in the several states, but generally an appeal lies to some superior tribunal to review the determination of the magistrate who originally entertained the proceedings; 4 although it has been a writ of error brought by the plain- tiffs themselves, although it was in their favor, as they were entitled to a legal judgment which they could en- forc e Seymour v Belden, 28 Con N 1 See Trawick v Davis, 4 Ala 328; Brown v M'Lane, I Ala 208 2 In Sweet v Overseers of Poor, 3 John S ( N Y )23, where a finding by the justice that the evidence is insufficient to sustain the charge is followed by a judgment that the defendant be dis- charged, the judgment is a final one, and from it an appeal may be take N McCoy z/ State, 121 Ind 160 Under a statute (Indiana Justices' Act, 64, Gavin H Stat593) al- lowing an appeal from a " judgment," an appeal cannot be taken from a " finding " by a justice of the peace that defendant was not guilt Y State v Brown, 44 Ind 329 Where a justice of the peace enters a judgment of not guilty, an appeal will He from such judgment, although there be no findin g Askren v State, 51 Ind 592 A justice's judgment that the " de- fendant is discharged from custody," and " that the relatrix do pay the costs of the suit," though informal, is one from which the plaintiff could appea L Britton v State, 54 Ind 535 3 The amount of judgment must depend upon the circumstances of each case, and such judgment will not be reviewed by the Supreme Court when the evidence considered by the court below does not appear of recor d Mills County v Hamaker, u Iowa 206 See generally, as to review of exercise of discretionary power, article AP- PEALS, Vo L I I, p P 409-420 Continuanc e If the transcript of the justice and the written examination of the complainant filed in the Court of Common Pleas be lost, a motion to continue the cause until such lost pa- pers be found is addressed to the dis- cretion of the court, and its action thereon cannot be reviewed on erroRHoff v Fisher, 26 Ohio St 7 Refusal of Application for Bon d Nor will the appellate court consider the refusal of an application for a bond to secure the performance of an order of maintenance addressed to the discre- tion of the trial court. Madison v Gray, 72 Me 254 Proceedings of Justices Certiorari to the Session S The Supreme Court will not quash the proceedings of two justices in a bastardy case upon cer- tiorari to the Sessions, without first setting aside the order of the Session S State v Overseer of Poor, 32 N J L 275- 4 Illinoi S It was held that, in the absence of a statute allowing appeals from the county court in cases of bas- tardy, the judgments of that court in such cases would be reviewed by the Supreme Court to prevent a failure of justic e This was decided in view of the failure of the County Court Act of 1871-72 to make provision for such appeal S Peak v People, 71 111 278; Peak v People, 76 111 289 Where such an appeal does lie to the Circuit Court, the case must go to the Supreme Court through the Circuit Court.

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4 No security is required Post Date: Wed, 30 Jul 2008 18:22:45 +0000
Peak v People, 76 111 289; Lewis v People, 82 111 104 The Revised Statutes of 1874 con- ferred the right to appeal from the county court to the Circuit Court, where a trial should be had de nov O Holcomb v People, 79 111 409; Lewis v People, 82 111 104; Hauskins v People, 82 111 193; Stanley v People, 84 111 212; Rawlings v People, 102 111 475; Scharf v People, 134 111 240 The Act of 1877 (Laws 1877, 8, p 69), allowing appeals from the county court to the Appellate Court in cer- tain specified cases, and in all com- mon-law cases, etc, does not author- ize an appeal to the Appellate Court in bastardy proceeding S And since these proceedings are in their nature civil, an appeal does not lie to that court, under the Act of 1879 ( 9 P- 222), relating to appeals to the Appel- late Court in criminal case S Raw- lings v People, 102 111 475 In 1887 (Laws of 1887, p 156) the Appellate Court Act was amended so as to give the Appellate Court juris- diction of all matters of appeal or error from judgments of the county court in proceedings other than criminal cases not misdemeanor S And in See v Peo- ple, 140 111 536, the court decided that under this amendment an appeal would lie from a judgment in bastardy proceedings from the county court to the Appellate Court. But in Stivers v People (111, 1894), 38 N E Rep 574, the court expressly overruled the last-mentioned case, and held that neither the County Court Act (Rev Stat1893, C 37, 212) nor section 8 of the Appellate Court Act gave the Appellate Court jurisdiction of appeals from the county courts in bastardy case S In Scharf v People, 134 111 240, which was an appeal from the Appel- late Court, section 8 of the act creat- ing that court was construe d The court declined to adhere to Rawlings v People, 102 111 475, and it was held that a bastardy proceeding was not " an action ex contractu" nor was the foundation of the right of recovery a " penalty," in the sense in which those terms were used in that sectio N It was also held in this case that, since the judgment against a putative father must necessarily be less than one thousand dollars the minimum amount of a judgment from which an appeal would lie, in the absence of a certificate of importance, to the Su- preme Court the Supreme Court would not review the judgment of the Appellate Court in such a case where no such certificate was presente d Indiana A bastardy prosecution being a civil action, and governed by the provisions of the civil code in all respects not provided for in the acts regulating prosecutions in cases of bastardy, an appeal may be taken to the Supreme Court from the judgment of the Circuit Court in a bastardy case in any of the modes provided for taking such an appeal in a civil ac- tion; and the fact that an appeal was prayed for in one of these modes is no ground for the dismissal of an ap- peal actually taken in one of the other mode S Powell v State, 96 Ind 108 KentucKy By section 20 of the Civil Code no appeal was given to the Cir- cuit Court in bastardy cases; conse- quently an appeal directly to the Court of Appeals, under section 15, to correct the errors of the county courts in such cases, was the only remed Y Upon these sections of the code as originally enacted, the court, in Co M v Taphorn, 4 Mete (Ky) 71, decided that the Circuit Court had no jurisdiction of an appeal from a judg- ment of the county court, upon a for- feited recognizance for the appear- ance of a defendant in a bastardy case, and that an appeal from such judgment was exclusively cognizable by the Court of Appeal S In Lewis v Co M, 3 Bush (Ky) 541, it was held that the amendment of March i, 1860, to section 20 of the Civil Code, giving appellate jurisdic- tion to circuit courts over "the judg- ments and final orders of the county courts in cases of bastardy," was not repealed by section 12 of the Act of June 3, 1865 "to reduce into one the bastardy laws of this commonwealth," although the latter act might be con- strued as authorizing an appeal di- rectly from the county court to the Court of Appeal S In Co M v Kendall, 6 Bush (Ky) 94, it was held that, by section 12 of the Act of June 3, 1865, an appeal might perhaps lie directly to the Court of Appeals from the county court by the adjudged father; but that an ap- peal from the county court by the commonwealth was allowable only to the Circuit Court in the first instance, and not to the Court of Appeal S New York The Court of Sessions is a court of original jurisdiction, within the provisions of the Code of Civil Procedure (sections 1340, 1357), allowing appeals to the Supreme Court from final judgments and orders af- fecting substantial rights of courts of record possessing original jurisdic- tion; and consequently an appeal lies to the Supreme Court from an order and judgment of a Court of Sessions vacating and setting aside an order made by two justice S People v ceedings are not within the statutes providing for appeals in civil case S 1 5 Perfection of Appea L An appeal must be taken within the time fixed by statute, 2 and the proceeding is governed generally by the rules regulating other appeals ; 3 and when so provided by statute, se- curity must be given by the appellant. 4 No security is required, however, on an appeal by the state, 5 ^nor by the mother when she prosecutes in forma pauperi S 6 A presumption exists in favor of the regularity of the appea L 7 See, generally, article APPEALS, Vo L I I, p I 6 Proceedings on Appea L In those states i which an appeal from a determination of paternity may be had a trial de novo Davis, 15 Hun ( N Y) 209; Peop^ v Lindsay, 53 Hun ( N Y) 234 Tennessee An appeal may be taken by the plaintiff from a judgment of the county court to the Criminal Court, the latter court having jurisdiction of bastardy prosecutions by the Act of 1871, which confers jurisdiction on that court "for the trial and presentment of crimes and offenses against the state," since, although not strictly criminal, bastardy is an "offense against the stat e" Crawford v State, 7 Baxt (Tenn) 41; State v Leonard, 2 Lea (Tenn) 16 VirginiaThe superior courts of law have jurisdiction to grant writs of supersedeas to orders of the county or corporation courts, binding persons accused of being the fathers of bas- tard children to support such children; and the Court of Appeals in like man- ner has jurisdiction to correct errors in the decisions of the superior courts of law on the same subje Ct Mann v Co M, 6 Munf ( Va) 452 1 Sweet -v Sherman, 21 Vt 24; Robinson v Dana, 16 Vt 475 Com- pare Ex p Gowen, 4 Me 58 2 Reed v State, 66 Ind 70 See article APPEALS, Vo L I I, p 237 et se Q 3 In Minnesota the procedure by which a judgment of the District Court, or its order upon motion for a new trial, in bastardy proceedings, may be appealed to the Supreme Court, is that regulating appeals in civil action S State v Klitzke, 46 Min N In New Jersey , upon compliance with all the requisites for an appeal from a conviction before two justices, in a bastardy proceeding an appeal may be entered in the Quarter Sessions, and that court may rule the two justiees to send up the papers in the proceed- in g State v Cassidy, 38 N J L 4 Satterwhite v State, 28 Ala 65 People v Lindsay, 53 Hun ( N Y) 234 See article APPEAL BONDS, Vo L I, p 963 Defect in Undertakin g When the undertaking, on an appeal in bastardy proceedings from an order of filiation made by two magistrates, is defective, the Court of Sessions has no power or jurisdiction to allow the defendant to amend the undertaking or to accept a new on e Ramsey v Childs, 34 Hun ( N Y) 329 5 Dibble v State, 48 Ind 470 ; Neff v State, 3 Ind 564; Walker z/ State, 6 Blackf (Ind) i ; Wolf v State, n Ind 231 ; Risk z/ State, 19 Ind 152 See article APPEAL BONDS, Vo L I, p 968 6 O'Neal v State, 2 Sneed (Tenn) 215 See article APPEAL BONDS, Vo L I, p 999 7 Wolf v State, u Ind 231 See article APPEALS, Vo L I I, p 420 Where upon appeal the defendant appears and submits to a trial by jury, he cannot afterwards object that the appeal was improperly take N Neff v State, 3 Ind 564 Where Record Fails to ehow Taking of Appea L If an appeal has in fact been taken, the failure of 'he justice to note that fact in his docket is not suffi cient cause for dismissing the appeal; and, in the absence of anything to the contrary, the Supreme Court will pre- sume in favor of the jurisdiction of the Circuit Court, and that the case came into that court by a regular appea L Unruh v State, 105 Ind 119 ; Morris v State : 115 Ind 285 is usually allowed, 1 and the court may compel the appearance of the defendant, 8 and make a new order of filiation and mainte- nanc e 3 7 Hearing and Determinatio N Objections which might have been taken and passed upon on the trial will not be considered when raised for the first time on appeal; 4 nor will the appellate 1 State v Overseers of Poor, 24 N J L 533; State v Overseer of Poor, 32 N J L 275 New York Right to Trial by Jur Y On an appeal to the Sessions from an order of filiation by two justices the appellant is not entitled to a trial by jur Y Roy v, Targee, 7 Wen d ( N Y) 2 Walker v State, 6 Blackf (Ind) I 3 New Jerse Y State v Overseer of Poor, 32 N J L 275 When in a bastardy case the per- son charged with being the father of the bastard child is acquitted before the justices, but convicted in the Quarter Sessions on appeal, the Quar- ter Sessions are authorized to make an order of filiation and maintenance against hi M State v Pickell, 43 N J L 355 On appeal to the Sessions from an order of two justices in a bastardy case the Sessions must retry the cause and render an independent judgment on the merit S A judgment of affirm- ance or reversal merely is irregular, and may be set asid e Hurff v Arm- strong, 38 N J L 287 Illinoi S A judgment in the Circuit Court in a bastardy proceeding affirm- ing that of the county court and remit- ting the case to that court for execution is erroneous in for M The trial, though on appeal, being de novo, the judg- ment should have been original and complete, without reference to the county court, but requiring the bond of defendant to be made payable to the clerk of that court and filed in his offic e Church v People, 26 111 App 232 Reversal of Judgment of Circuit Court on Appeal from County Court.

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Murphy v Spence, 9 Gray Post Date: Wed, 30 Jul 2008 18:11:38 +0000
Where a judgment of the Circuit Court, on appeal from the county court, is re- versed for want of jurisdiction in the Circuit Court to entertain the appeal, the judgment of the county court is left in forc e Peak v People, 71 111 278 Iowa Power of District Court. In case the accused appeals to the Dis- trict Court, that court has power to adjudge the defendant to pay specified sums at fixed periods for the main- tenance of the chil d Black Hawk County -v Cotter, 32 Iowa 125; Coburn v Mahaska County, 4 Greene (Iowa) 242 Tennessee Power of Circuit Court on Appeal where County Court Fails to As- sess Amount of Alloivanc e The county court is the only tribunal authorized to assess the amount of allowance to the mother of a bastard child for its maintenance, and if that court fails to assess it and an appeal is taken to the Circuit Court, the latter court cannot supply the omissio N Irwin v State, 8 Humph (Tenn) 14 4 State -v Black (Iowa, 1893), 55 N W Rep 105; Cook -v People, 51 111 144; Jones v People, 53 111 366 See article EXCEPTIONS AND OBJECTION S Thus, objections to the form of the complaint, not being made at the trial, cannot be first taken in the Supreme Court. Murphy v Spence, 9 Gray (Mas S) 399 A motion to quash the affidavit and warrant on the ground that the affi- davit fails to aver that the prosecutrix was a single woman, comes too late when made for the first time in the Circuit Court on appea L Smith v State, 73 Ala N Proof as to when Child was Begot- ten or Bor N Where the proof as to when the child was begotten or born, or where the defendant was found, is not fully called out before the jury, and no question is raised in the Cir- cuit Court as to the sufficiency of the proof on these points, the objection will be too late when raised for the first time in the Supreme Court.

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De Priest v State, 68 Post Date: Wed, 30 Jul 2008 17:55:30 +0000
Hauskins v People, 82 111 193; Cook v People, 51 111 144 Failure to Appoint Guardian ad Lite M An objection to the trial and judg- ment, upon the ground that no guard- ian ad litem had been appointed for an infant defendant in a bastardy suit, cannot be made for the first time in Xv CRIMINAL PROCEEDINGS REQUISITES OF THE INDICTMENT. It is necessary, in an indictment for bastardy, to allege distinctly that the defendant is the father of the bastard child ; a and it seems that such indictment should show the residence of the mother and child, 3 and in some states it was formerly necessary to charge the Supreme Court. De Priest v State, 68 Ind 575 Overruling a Motion to Dismis S Error in overruling a motion to dismiss the prosecution, if not excepted to at the time, is not available in the Su- preme Court.

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That there was in fact Post Date: Wed, 30 Jul 2008 17:40:38 +0000
Fisher v State, 65 Ind 52 Irregularity in the Proceeding S If there has been any irregularity in the proceedings in an inferior court, it cannot be taken advantage of in the Superior Court. Hannan v Doherty, 136 Mas S 567; Thompson v Kenney, no Mas S 317 In proceedings in bastardy, irregu- larities in the procedure before the justices cannot be taken advantage of after an appeal to the Session S If, on appeal to the Sessions, the jurisdic- tional facts can be gathered from the order of the justices and the other papers in the case, it is sufficient, as every intendment should be made in favor of these order S Schomp v Tompkins, 46 N J L 608, reversing Tompkins v Schomp, 45 N J L An Order by Justices Allowing Ly- ing-in Expense S An order of the Ses- sions, confirming an order of bastardy by two justices ordering the payment of the expenses of the lying-in of the mother, will not be reversed on the ground that there was no evidence be- fore the Sessions as to such lying-in expenses, if no objection to the con- firmation of the justices' order on that ground was taken in the Session S Ray v Targee, 7 Wen d ( N Y) Prior Order of Filiation against De- fendant. That there was in fact a prior order of filiation against a de- fendant in a bastardy case, in behalf of the same township, respecting the same child, will not justify the reversal of the order of filiation brought up to the Supreme Court upon certiorari, unless it appears that the bar of the prior order was set up in the court below, and that there was an adjudication thereo N Leconey v Overseer of Poor, 43 N J L 409 1 Objections to specific charges in a bastardy complaint as irrelevant and unsustained by proof should be spe- cifically noted, and not raised by a general objection that the court should have charged the jury that the complaint must set forth the time and place of begetting the child, and that this must accord with known facts and the law of nature, and that the proofs must be confined to such complaint.

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Walker v State, 5 Post Date: Wed, 30 Jul 2008 17:20:52 +0000
Hamilton v People, 46 Mich 186 2 Locke v State, 3 Ga 534 Sufficiency of Indictment. An indict- ment for bastardy, under the Penal Code of Georgia, is sufficient if it al- leges that the defendant is the father of the bastard, and that he refused to give security for the maintenance and education of such child when required to do so in terms of the law by the justice of the peace before whom he was brought by virtue of a bastardy warrant. Walker v State, 5 Ga 491 Two Bastard Childre N Where the defendant is charged with being the father of two bastard children, it is the better practice to have him in- dicted for two distinct offenses; yet the fact that he was charged with but one offense in being the father of two bastard children is no ground for ac- quitta L Davis v State, 58 Ga 170 Born at One Birt H Two indictments may be sustained under the S Car Act of 1839 against the putative father of two bastard children, born at one birth; but the indictments and the re- cognizances should describe each child by name, complexion, hair, and sex, or at least by some marks of separate identit Y State v Derrick, i McMul L ( S Car) 338 Meaning Obscure and Uncertai N An indictment, alleging that A C " is the farther of the said bastard child," was held bad, on motion in arrest of judg- ment.

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Where the apprehension Post Date: Wed, 30 Jul 2008 17:01:16 +0000
State v Caspary, u Rich ( S Car) 356 3 The indictment should show the that the mother was a white woma N 1 It does not appear necessary that the preliminary proceedings before the justice should be set out in the indictment. 2 residence of mother and child, so that the accused, if found guilty, may be compelled, by a judgment pursuant to the verdict, to recognize for the indem- nity L of the proper count Y Root v State, 10 Gill J (Md) 374 But in Robinson v State, 68 Md 617, it was held that the indictment need not allege the residence of the mother, but must show in what county the child was at the time of the indictment foun d 1 State v Clark, 2 Brev ( S Car) 386; State v Clements, I Spears ( S Car) 48 2 Cushwa v State, 20 Md 281; Norwood v State, 45 Md 68 Unnecessary Allegation S On an in- dictment for bastardy it is unnecessary to allege that the child is likely to be- come a burden upon the district, and that the defendant refused to enter into recognizance for its support, in pursuance of the act; and if such aver- ments are made they need not be prove d If the defendant did give such bond, he should plead it in baRState z/McDonald, 2 McCord ( S Car) 299 ; State v Crawford, 10 Rich ( S Car) 361 and by statute in some states it may also be found in the county where the defendant is apprehende d 1 Allegation S But in such case, since the foundation of the court's jurisdiction is the fact that the prisoner was apprehended or is in custody in the county, the same must be allege d 2 Subsequent Cohabitation under the second marriage, since it is a dis- tinct offense from bigamy, may be indicted and punished in any county in which it is committe d 3 not defeat such jurisdictio N King v People, 5 Hun ( N Y) 297 In Missouri and Arkansas it is held that the legislature has no power to provide for the indictment of a per- son for bigamy in a county other than that where the offense was committed; and an act providing for the indict- ment of a bigamist in any county where he is apprehended is unconsti- tutiona L State v Smiley, 98 Mo 605; Walls v State, 32 Ark 568 2 State v Griswold, 53 Mo 181; State v Fitzgerald, 75 Mo 572; Sauser v People, 8 Hun ( N Y) 304; Houser v People, 46 Barb ( N Y) 33; Rex v Fraser, i M C C 407 The averment of the prisoner's ap- prehension is necessary only where the second marriage did not take place in the county where the defend- ant is indicte d State v Griswold, 53 Mo 181; Rex v Fraser, i M C C 407; Arc H Cri M P I (loth Lon d e d) 629 Where the venue is laid in the county where the prisoner is appre- hended, the indictment should aver the arrest in the county where the venue is lai d 3 Chitty Cri M Law 720, not e Allegation as to Custod Y Where an indictment for bigamy is found in a different county from that in which the offense was committed, it must al- lege that the prisoner was in custody at the time of the finding of the inqui- sition in the court of the findin g State v Griswold, 53 Mo 181; Reg v Whiley, 2 M C C 186 Apprehension Prior to Finding of In- dictment. Where the apprehension of the offender is made the ground of jurisdiction, such apprehension must have occurred prior to the finding of the indictment and must be alleged in the indictment.

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State v Davis, 109 N Post Date: Wed, 30 Jul 2008 16:44:42 +0000
State v Fitzgerald, 75 Mo 572 3 Beggs v State, 55 Ala 108; Scoggins v State, 32 Ark 205; State v Hughes, 58 Iowa 165; Co M v Brad- 1 State v Sweetsir, 53 Me 438; People v Mosher, 2 P Ark CR Rep N Y) 196; King v People, 5 Hun { N Y) 297; Collins v People, i Hun ( N Y) 610; Rex v Fraser, i M C C 407 The statute i Ja C I, C n, i, pro- vides that a person indicted under it for bigamy may be tried in any county where he is apprehende d Stark Cri M P I (2d e d) n; i Bis H Cri M Pro, 62, not e It was also held under this statute that the arrest of a person on the charge of larceny was such an appre- hension as would justify his being in- dicted and tried on the charge of big- amy in the same court. Rex v Gor- don, R R C C 48 Jurisdiction not Enlarge d The stat- utory provision to the effect that an indictment may be found against any person for a second or other prohib- ited marriage in the county in which such person shall be apprehended, and like proceedings had as if the offense had been committed therein, merely regulates the venue or place of trial, and does not enlarge the jurisdiction of the state courts or give them cog- nizance of offenses committed without the stat e People v Mosher, 2 P Ark CR Rep ( N Y) 196 Motion to Discharg e Where the prisoner was indicted, tried, and con- victed of bigamy in the court of one county, and the proof showed that the second marriage took place in another county, and that the prisoner was apprehended there, a motion to discharge the prisoner was grante d Collins v People, 4 Thom P C N Y) 77- Escape of PrisoneRUnder the New York statute providing that the pris- oner may be indicted for bigamy in the county where he is apprehended held, that, the court having acquired jurisdiction by arrest before indict- ment, the subsequent escape or dis- charge of the prisoner on bail will Second Marriage in Another stat e Where the second marriage takes place in another state the courts of the state of the first marriage have no jurisdiction unless by statut e 1 I I THE INDICTMENT 1 Generally Following statut e An indict- ment for bigamy should substantially follow the statute under which it is draw N 2 Negativing Exception S But it is unnecessary to negative any of the exceptions specified therei N 3 fully cohabit with the said Mary E Markham in the county of Kankakee, in this state charges the offense of bigamy under the Illinois statut e Tucker v People, 117 111 91 Words in Statute Descriptive of Offens e The rule as to the sufficiency of an indictment which follows the language of the statute and charges the com- mission of the offense therein de- scribed applies only to offenses which are complete in themselves, when the acts set out in the statute have been done or performed, which is not the case in the crime of bigam Y Davis v Co M, 13 Bush (Ky) 318, overrul- ing Co M v Whaley, 6 Bush (Ky) 266 3 Barber v State, 50 Md 170; State v Williams, 20 Iowa 98; Co M v Jennings, 121 Mas S 47; Kopke v People, 43 Mich 41; Fleming v Peo- ple, 27 N Y 330; State v Norman, 2 Dev (N Car) 222; State v Afcbey, 29 Vt 60, 67 A M De C 755; Stanglein v State, 17 Ohio St 453 See also State v Palmer, 18 Vt 570 In Co M v Jennings, 121 Mas S 49 , Gray, CJ, delivering the opinion of the court, said: "It is a general rule of pleading that when an ex- ception or a proviso is embodied in the clause which defines the offense, or, as it is commonly called, the enact- ing clause, it must be negatived in the indictment; but if it is only found in a subsequent distinct clause of the same or another statute, it need not be so negative d" Matters of Defens e The failure of an indictment for bigamy to allege that " the former wife had not been continually and wilfully absent for the space of five years together, and un- heard from, next before the time of the second marriage charged in the indictment," is no ground for arrest- ing judgment, since such fact is a matter of defense to be proved by the accuse d Stanglein v State, 17 Ohio- St 453 ley, 2 Cus H (Mas S) 553; State v John- son, 12 Min N 476 Upon an indictment for continuing to cohabit with a second wife, the first wife being still alive, an allegation that the second marriage was on a certain day and that the prisoner co- habited with his second wife for the space of six months, is a sufficient statement of the time when the offense was committe d Co M v Bradley, 2 Cus H (Mas S) 553; Co M v Godsoe, 105 Mas S 464 Statute of Limitatio N Where the defendant continued to cohabit within the state after the bigamous marriage was barred held, that he could be prosecuted for the distinct offens e State v Sloan, 55 Iowa 217 See also Scoggins v State, 32 Ark 205; State v Nadal, 69 Iowa 478 1 State v Barnett, 83 N Car 616; Scoggins v State, 32 Ark 205; State v Johnson, 12 Min N 476; People v Mosher, 2 P Ark CR Rep ( N Y) 195 2 State v Gonce, 79 Mo 600; State v Armington, 25 Min N 29; Davis v Co M, 13 Bush (Ky)3i S feloniously, having a wife then living, unlawfully married one B contrary to the statute in such case provided, and against the peace and dignity of the stat e State v Armington, 25 Min N 29 Illinoi S An indictment charging that the defendant on the i$th day of April, 1872, in Cook county, Illinois, married one Mary I Bennett, who then became his lawful wife; that afterwards, on the rgth day of Sep- tember, 1883, at St Paul, in the county of Ramsey, in the state of Minnesota, he unlawfully married one Mary E Markham, while he was yet the lawful husband of the said Mary I Bennett, never having been divorced from her, and she being then living; and that afterwards the defendant did unlaw- The Marriage S An indictment for bigamy should allege a prior valid marriage and a subsequent marriage, the legal wife or hus- band being still aliv e 1 2 Allegations as to First Marriag e There is some conflict of authority as to the particularity required in setting out the first marriag e 2 Time and Place of First Marriag e Some courts hold that it is necessary to allege the time 3 and place of the first marriage; 4 but, accord- 1 Beggs v State, 55 Ala in; Williams v State, 54 Ala 134, 25 A M Rep 665; State v Hughes, 35 Ka N 626, 57 A M Rep 195; Co M v Mc- Grath, 140 Mas S 298; State v Nor- man, 2 Dev (N Car) 222; Hull v State, 7 Tex App 594; Dumas v State, 14 Tex App 468, 46 A M Rep 241; Squire v State, 46 Ind 465; Reg v Lumley, L Ri C C 196, 3 Chitty Cri M Law 719 and not e The indictment should allege and show that the marriage relation had been entered into and existed between the accused and his wife atthe time of his second marriag e State v Hughes, 35 Ka N 626, 57 A M Rep 195 Lawful Wife Livin g An indictment for bigamy should allege that at the time of the second marriage the de- fendant had a lawful wife livin g King v State, 40 Ga 246 Direct Averment Necessar Y An al- legation in an indictment for bigamy averring that the defendant at a cer- tain time and place married a second time, " well knowing that his former wife was then living," is merely an argumentative averment; there must be a direct averment that the first wife was living at the time of the second marriag e Prichard v People, 149 111 50 And see Sauser v People, 8 Hun ( N Y) 302 Subsisting Marriag e In an indict- ment for bigamy it is sufficient to aver the life of the first wife without going on to allege that the marriage is still subsistin g Murray v Reg, 7 QB 700, 14 L J QB 357; State v Nor- man, 2 Dev (N Car) 322 Where an indictment for bigamy stated that the marriage relation en- tered into by the lawful marriage still existed, it was sufficient without aver- ring that the lawful wife was living at the time of the second marriag e S Rate v Hughes, 58 Iowa 167 2 King v State, 40 Ga 247; Hutch- ins v State, 28 Ind 34; Kopke v People, 43 Mich 42; State v Bray, 13 Ire d (N Car) 289; State v La Bore, 26 Vt 765; State v Armington, 25 Min N 34; Davis v Co M, 13 Bush (Ky) 318, overruling Co M v Whaley, 6 Bush (Ky) 266 By Whom Celebrate d The indictment need not aver before whom the former marriage was celebrate d Hutchins z/ State, 28 Ind 34 Minister Extent of Authorit Y When the marriage ceremony is claimed to have been performed by a minister, the extent of his authority for that purpose should be made to ap- peaRState v Bray, 13 Ire d (N Car) 289 First Marriage Lawfu L The indict- ment should allege that the first mar- riage was lawfu L King v State, 40 Ga 247 But see the case of Kopke v People, 43 Mich 42, where it was held that an averment in an indictment setting out the first marriage must be presumed to intend a lawful marriage, and the prosecution must prove on e Name of First Husband or Wif e In Kentucky it is held that the indictment should aver the name of the first hus- band or wif e Davis v Co M, 13 Bush (Ky) 318, overruling Co M v Whaley, 6 Bush (Ky) 266 But in North Carolina and Texas the name of the first wife need not be charged in the indictment. State v Davis, 109 N Car 780; Watson v, State, 13 Tex App 76 Maiden Name of First Wif e Nor is it necessary to aver the maiden name of the first wif e Hutchins v State, 28 Ind 34; State v Armington, 25 Min N 34 3 State v La Bore, 26 Vt 765; Davis v Co M, 13 Bush (Ky) 318, overruling Co M z Whaley, 6 Bush (Ky) 266 See also the indictment in the following cases: Tucker v State, 117 111 90; Gorman v State, 23 Tex 646; Stanglein v State, 17 Ohio St 453; State v Palmer, 18 Vt 570; Kopke v People, 43 Mich 41 4 People v Giesea, 61Cal53; Co M ing to the weight of American authority, it seems enough to aver the marriage in general terms, and the elements of time and place may be omitte d 1 3 Allegations as to Second Marriag e Since the second or biga- mous marriage constitutes the offense, the same should be alleged, with time and place ; 2 but it is not necessary to allege that the second marriage was unlawfu L 3 v McGrath, 140 Mas S 296; State v La Bore, 26 Vt 765; Davis v Co M, 13 Bush (Ky) 318, overruling Co M v Whaley, 6 Bush (Ky) 266 The first marriage may be laid in the county where it actually took place, though the venue is laid in an- otheR3 Chitty Cri M Law 720, note; St Ark 434, note A 1 People v Giesea, 61Cal53; Hutchins v State, 28 Ind 34; State v Hughes, 35 Ka N 626, 57 A M Rep 195; State v Bray, 13 Ire d (N Car) 289; People v Perriman, 72 Mich 187; Faustre v Co M, 92 Ky 34; State v Armington, 25 Min N 34; Co M v Mc- Grath, 140 Mas S 296 Where an indictment for bigamy sets out a marriage and a living wife at the time of the second marriage, it does all that is require d Kopke v People, 43 Mich 41 An allegation of the place of mar- riage, not being essential as a juris- dictional matter or as establishing the specific character of the offense, need not be proved as lai d State v Nadal, 69 Iowa 478 While there is some reason why, upon an indictment for bigamy, the place, as well as the time, of the first marriage should be given, it is appar- ent that the only important fact is the existence of the two marriage S People v Perriman, 72 Mich 187 Contr A Davis v Co M, 13 Bush (Ky) 318, overruling Co M v Whaley, 6 Bush (Ky)266; State v La Bore, 26 Vt 765- Upon an indictment for bigamy, where the time and place of the first marriage were left blank in the indict- ment held, that although such is merely formal and of the least possible importance, yet, unless all form is to be disregarded, the indictment should be held insufficient.

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