Commonwealth v. Jennings

• Decision Date: 20 October 1876
• Citation: 121 Mass. 47
• Parties: Commonwealth v. William H. Jennings
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 47

Commonwealth v. William H. Jennings

Supreme Court of Massachusetts

October 20, 1876

Hampshire. Indictment on the Gen. Sts. c. 165, § 4 alleging that "William H. Jennings, of Northampton, in the county of Hampshire aforesaid, on the eleventh day of January, A. D. 1866, at Amherst, in the said county of Hampshire, he, the said William H. Jennings, being then and there a single man unmarried, was lawfully married to one Augusta Gigger, and her, the said Augusta Gigger, then and there had and took for his the said William H. Jennings's lawful wife, and that afterwards, he, the said William H Jennings, on the thirteenth day of November, A. D. 1875, at said Amherst, in the county aforesaid, did unlawfully marry and take to his wife one Hattie Johnson, he, the said William H. Jennings, being then and there married and the lawful husband of the said Augusta Gigger, she, the said Augusta Gigger, then being his former wife and then living, and he the said William H. Jennings, never having been lawfully divorced from the said Augusta Gigger; and that the said William H. Jennings afterwards did cohabit and continue to cohabit with the said Hattie Johnson, his second wife, in this State, to wit, at Northampton, in said county of Hampshire, for a long space of time, to wit, for the space of six months. Whereby, and by force of the statute in such case made and provided, he, the said William H. Jennings, is deemed guilty of the crime of polygamy. And so the jurors aforesaid, on their oath aforesaid, present that said William H. Jennings, in manner and form aforesaid, at Amherst, in the county of Hampshire, on the thirteenth day of November, now last past, did commit the crime of polygamy; against the peace of the Commonwealth aforesaid and the form of the statute in such case made and provided."

In the Superior Court, before the jury were empanelled, the defendant filed a motion to quash the indictment on the following ground: "Because it is not alleged in said indictment that the said Augusta Gigger, at the time of said second marriage, had not been continually remaining beyond the sea, and had not voluntarily withdrawn from the said William H. Jennings, and remained absent for the space of seven years together."

Allen J., overruled the motion, and the defendant was then tried. The government put in evidence a certified copy of the record of the defendant's first marriage on January 11, 1866, in which the bride's name was stated to be "Augusta Gigger."

A witness, one Thompson, testified that the former wife's name was spelled "Jiger" or "Jigr." The defendant testified that her name was spelled "Jiger;" and that the name was pronounced giving the "g" the soft sound, and not the hard sound given to the "gg" as pronounced by other persons who read the indictment or the copies of the records. There was no evidence as to how it was usually pronounced, or how it was spelled, other than as above given, except that the witness Thompson pronounced it, giving the first letter the soft sound and the double letter the hard sound of "g."

The defendant asked the judge to rule that the defendant could not be convicted upon the evidence as to the name of the former wife. The defendant also asked the judge to rule that, on the evidence, the jury could not find that the name of the first wife was the same in sound as the name set out in the indictment; that the sound, in order that a different spelling might suffice, must be the same when correctly pronounced.

The judge declined so to rule, but ruled that the defendant could only be convicted upon evidence showing that the former wife's name was usually pronounced as set out in the indictment. The jury returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions overruled.

D. W. Bond, for the defendant.

C. R. Train, Attorney General, for the Commonwealth.

Gray C. J. Colt & Morton, JJ., absent.

OPINION

Gray C. J.

This indictment is upon the Gen. Sts. c. 165, § 4, enacting that "whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife, in this State, shall (except in the cases mentioned in the following section) be deemed guilty of polygamy, and be punished" by fine or imprisonment. Section 5 declares that "the provision of the preceding section shall not extend to any person whose husband or wife has been continually remaining beyond sea, or has voluntarily withdrawn from the other and remained absent for the space of seven years together, the party marrying again not knowing the other to be living within that time, nor to any person legally divorced from the bonds of matrimony and not the guilty cause of such divorce."

The indictment avers that, at the time of the second marriage, the first wife was still living, and the husband had not been divorced from her. But it does not negative the other provision of § 5; and the question raised by the motion to quash is, whether the indictment is for that reason defective.

It is a general rule of pleading, that when an exception or proviso is embodied in the clause which defines the offence, or, as it is commonly called, the enacting clause, it must be negatived in the indictment; but that if it is only found in a subsequent distinct clause of the same or another statute, it need not be so negatived. Commonwealth v. Maxwell, 2 Pick. 139. Commonwealth v. Hart, 11 Cush. 130. Commonwealth v. Sheffield, 11 Cush. 178.

The learned counsel for the defendant contends that in the middle class of cases, where the exception is not in express words introduced into the general or enacting clause, but only by reference to a subsequent clause, by the words "as hereinafter mentioned," or the like, the rule requires that all the circumstances of exemption and modification, whether applying to the offence or to the person, stated in the subsequent clause, should be distinctly negatived, because they must be deemed to be incorporated in the enacting clause, according to the maxim, verba relata inesse videntur. This position appears to be supported by opinions of Lord Tenterden and of Mr. Justice Metcalf, both names of weight upon a question of this kind. Steel v. Smith, 1 B. & Ald. 94, 99, 100. Vavasour v. Ormrod, 9 D. & R. 597, 599; S. C. 6 B. & C. 430, 432. 8 Am. Jur. 241, 242. Commonwealth v. Hart, 11 Cush. 130, 137.

But the statement of Mr. Justice Metcalf in Commonwealth v. Hart was a mere repetition, in a case which did not call for its judicial consideration, of a proposition which he had laid down, while at the bar, in the American Jurist, ubi supra, and is inconsistent with the subsequent adjudication of this court, in which he concurred, in Commonwealth v. Tuttle, 12 Cush. 502.

In Steel v. Smith, the remark of Lord Tenterden (then Mr. Justice Abbott) was purely obiter dictum, and Mr. Justice Bayley, a most accurate judge, stated the rule thus: "Where there is an exception so incorporated with the enacting clause that the one cannot be read without the other, there the exception must be negatived." 1 B. & Ald. 99.

In Vavasour v. Ormrod, also, the general statement of Lord Tenterden went beyond what the case required. The action was debt for rent under a lease containing a covenant by the defendant to pay the rent sued for, "except as hereinafter mentioned," and also a covenant by the lessor to expend a certain sum in erecting a steam engine, and a provision that, if the lessee should within a certain time pay him the whole or part of that sum the rent should be reduced as therein provided, which might perhaps be considered, as suggested by Mr. Justice Bayley during the argument, (9 D. & R. 599,) as amounting to neither an...