Gise v. Commonwealth

• Decision Date: 18 May 1876
• Citation: 81 Pa. 428
• Parties: Gise <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

81 Pa. 428

Gise versus Commonwealth.

Supreme Court of Pennsylvania.

March 17, 1876.

May 18, 1876.

March 17th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Quarter Sessions of Luzerne county: Of January Term 1876, No. 250 E. L. Merriman, for plaintiff in error, cited Commonwealth v. Hutchinson, 2 Pars. 453.

H. W. Palmer, for Commonwealth, defendant in error.

Mr. Justice PAXSON delivered the opinion of the court, May 18th 1876.

This case presents a single question.

The plaintiff in error was indicted for the crime of bigamy. Upon the trial in the court below, the Statute of Limitations was set up as a defence. It appeared that the second marriage took place more than two years prior to the prosecution. The court ruled that bigamy was a continuing offence, and that the statute did not apply. The defendant was convicted and sentenced; and the record having been brought into this court upon a writ of error, we are required to decide upon the correctness of this ruling.

Our Statute of Limitations contains no clause excepting bigamy out of its operation. Its language is: "All indictments which shall be brought or exhibited," &c. Were we now to say that all indictments except bigamy shall be barred, unless brought or exhibited within the statutory period, we should be writing into the Act of Assembly that which the law-making power has not placed there. This is clearly not within the province of the judiciary. It is said, however, that the Statute of Limitations does not apply by reason of the peculiar phraseology of the section of the code defining bigamy; that the offence is the having two wives or two husbands at one and the same time, and is of a continuing nature. This is certainly a literal construction of the act, and taken in this strict sense it defines no offence, for the reason that, under the law of Pennsylvania, it is impossible, as a legal proposition, for a man to have two wives, or a woman to have two husbands at the same time. A man who takes a wife here, cannot have a second wife so long as his former marriage is undetermined by divorce or death. He may, indeed, enter into a second marriage contract pending the first. But the second woman is never a wife. The law strikes down such second contract as void, and the offence is bigamy on the part of the man.

It is very clear that at common law the crime of bigamy occurs and is complete when the second marriage is accomplished. It follows that the statute would commence to run from that time. This has never been questioned. But it is said that, owing to the peculiar language of our statute, it seeks to extend the offence of bigamy beyond the mere marriage contract, and cover the subsequent cohabitation of the parties, which, being continuous in its nature, is not affected by the bar of the statute. Yet, a little reflection will show that our code, so far from being peculiar in its terms, merely defines the offence of bigamy at common law. It is said, in Bacon's Abridgment, that bigamy is the "having of a plurality of wives," and that the offence consists of marrying a second wife, the first being alive. Bouvier defines it to be "the state of a man who has two wives, or of a woman who has two husbands, living at the same time." Blackstone says it is the "having of a plurality of wives at once." It will be seen that our code, 34th section of Act of the 31st of March 1860, Pamph. L. 392, uses almost the precise phraseology of the text writers. Its language is: "If any person shall have two wives or two husbands at one and the same time." Nor can it be claimed that there is anything novel in this section. It is but a re-enactment of the Act of 1705 (1 Sm. Laws 29), so far as it relates to the description of the offence. In a note to the last-named act, it is said that this statute merely defines the offence of bigamy, which "is understood in law to be, where a person marries a second wife or husband, the first being living." Such has been the uniform construction of our statute since the Act of 1705; our indictments have been so drawn. The forms which are given by Mr. Wharton, in his Precedents, at page 582, charge the second marriage as the offence, as at common law. One of those forms was prepared by Mr. Jared Ingersoll, while attorney-general, in 1795; the other by Attorney-General Bradford, in 1790. Both of these eminent lawyers evidently regarded the second marriage as the offence; and such has been the uniform construction from that day to the present time. That they were right in this, is manifest from the fact that the indictment for bigamy is always, under our practice, found within the jurisdiction where the second marriage took place. That the venue must be so laid is elementary law: Wharton's A. C. L., § 2627; Finney v. State, 3 Head. 544; People v. Mosher, 2 Parker 195. It is not so in England, nor in New York, nor Virginia. But this rests upon statute. We have no such statute, and the common-law rule prevails.

What our statute forbids is the contracting of a second marriage during the lifetime of a former husband or...