Commonwealth v. Jennings

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtGray C. J.
Citation121 Mass. 47
PartiesCommonwealth v. William H. Jennings
Decision Date20 October 1876

121 Mass. 47

Commonwealth
v.
William H. Jennings

Supreme Court of Massachusetts

October 20, 1876


[121 Mass. 48]

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Gigger, at the time of said second marriage, had not been continually remaining beyond the sea, and had not voluntarily withdrawn from the said William H. Jennings, and remained absent for the space of seven years together."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 [121 Mass. 49]

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,...

To continue reading

Request your trial
20 practice notes
  • Commonwealth v. Badger
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 29, 1922
    ...complaint and no proof as to the matter was offered by the commonwealth. It was said by Chief Justice Gray in Commonwealth v. Jennings, 121 Mass. 47, at page 49,23 Am. Rep. 249: ‘It is a general rule of pleading, that when an exception or proviso is embodied in the clause which defines the ......
  • Murray v. Cont'l Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 20, 1943
    ...provisions of the statute, it need not be negatived, unless necessary to a complete definition of the offence.’ Commonwealth v. Jennings, 121 Mass. 47, 51,23 Am.Rep. 249. A complaint under Pub.Sts. c. 98, § 2, for keeping open a shop upon the Lord's day need not negative the exceptions cont......
  • People v. Talbot, No. 17365.
    • United States
    • Supreme Court of Illinois
    • October 28, 1926
    ...677;People v. Callicott (No. 17292) 153 N. E. 688;Lequat v. People, 11 Ill. 330;State v. O'Donnell, 10 R. I. 472;Commonwealth v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; 1 Wharton on Crim. Proc. (10th Ed.) §§ 288, 290. The matter contained in this part of section 40 is purely defensive and ......
  • Commonwealth v. McKnight
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 22, 1933
    ...indictment and had to be negatived beyond a reasonable doubt by the proof. Commonwealth v. Hart, 11 Cush. 130;Commonwealth v. Jennings, 121 Mass. 47, 23 Am. Rep. 249;Commonwealth v. Lee, 247 Mass. 107, 141 N. E. 607;Commonwealth v. Sokorelis, 254 Mass. 454, 459, 150 N. E. 197;G. L. (Ter. Ed......
  • Request a trial to view additional results
20 cases
  • Commonwealth v. Badger
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 29, 1922
    ...complaint and no proof as to the matter was offered by the commonwealth. It was said by Chief Justice Gray in Commonwealth v. Jennings, 121 Mass. 47, at page 49,23 Am. Rep. 249: ‘It is a general rule of pleading, that when an exception or proviso is embodied in the clause which defines the ......
  • Murray v. Cont'l Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 20, 1943
    ...provisions of the statute, it need not be negatived, unless necessary to a complete definition of the offence.’ Commonwealth v. Jennings, 121 Mass. 47, 51,23 Am.Rep. 249. A complaint under Pub.Sts. c. 98, § 2, for keeping open a shop upon the Lord's day need not negative the exceptions cont......
  • People v. Talbot, No. 17365.
    • United States
    • Supreme Court of Illinois
    • October 28, 1926
    ...677;People v. Callicott (No. 17292) 153 N. E. 688;Lequat v. People, 11 Ill. 330;State v. O'Donnell, 10 R. I. 472;Commonwealth v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; 1 Wharton on Crim. Proc. (10th Ed.) §§ 288, 290. The matter contained in this part of section 40 is purely defensive and ......
  • Commonwealth v. McKnight
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 22, 1933
    ...indictment and had to be negatived beyond a reasonable doubt by the proof. Commonwealth v. Hart, 11 Cush. 130;Commonwealth v. Jennings, 121 Mass. 47, 23 Am. Rep. 249;Commonwealth v. Lee, 247 Mass. 107, 141 N. E. 607;Commonwealth v. Sokorelis, 254 Mass. 454, 459, 150 N. E. 197;G. L. (Ter. Ed......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT