Necessity § 1679. It need scarcely be added that for the technical offence of prison breach, necessity (e. g., a conflagration in the prison) is a defence. The same defence avails on an a defence. indictment against the officer. But a plea by the defendant that the condition of the jail was intolerably injurious to his health will not be regarded as good where it does not appear that all other means of relief had failed." III. RESCUE. Rescue is violent de livery of prisoner from cus tody. § 1680. Rescue is a violent delivery of a prisoner from lawful custody; and is committed by one who would be a principal in the second degree in a prisoner's breach of prison, and who was present actually or constructively assisting by violence in such prison breach. It may also be consummated by wresting a prisoner violently from custody, even though the prisoner should take no part in the violence.5 Rescue, like prison breach, is either felony or misdemeanor, as the crime charged on the prisoner rescued is felony or misdemeanor. But there must be knowledge by the rescuer that the person rescued was under some arrest; and if the person rescued be in the custody of a private person, the offender must logical contradiction to say that the scaffold and the cell are to be used to prove that the scaffold and the cell are of no use. If men voluntarily submit to punishment, then compulsory punishment is a wrong. Beside this, a jailer may argue that if we hold that a prisoner is under bonds as much when he is let loose as when he is locked up, there is no reason for over-carefulness in locking up. Following these views, the conclusion has been reached that an unresisted escape is not per se an indictable offence (see Berner, Lehrbuch, p. 548; Henke Handbuch, iii. § 179; Koch, § 618); and this view has been adopted by all modern German codes. The English decisions on this point may be too firmly settled to be 2 Shattuck v. State, 51 Miss. 575. State v. Cuthbert, T. Charl. 135. See Com. v. Filburn, 119 Mass. 297. 62 Hawk. P. C. c. 18, s. 10. 7 State v. Hilton, 26 Mo. 199. have notice of the fact that the person rescued is in such custody.1 An unsuccessful rescue may be indicted for an attempt.2 1 Steph. Dig. C. L. art. 145:"Every one commits high treason, felony, or misdemeanor who rescues a prisoner imprisoned on a charge of, or under sentence for, high treason, felony, or misdemeanor, respectively." 486 Steph. Dig. C. L. citing 1 Hale P. C. 606; 1 Russ. on Cr. 597. See, for authorities, supra, § 652. 2 See supra, §§ 173 et seq., 652; State v. Murray, 15 Me. 100. CHAPTER XXXI. BIGAMY AND POLYGAMY. I. EFFFCT OF PLACE OF FIRST MARRIAGE. Ordinarily marriage valid by lex loci contractus is valid everywhere, § 1683. But not so as to converse, § 1684. II. EFFECT OF TIME AND PLACE OF SECOND MARRIAGE. Offence indictable in place of offence, § 1685. III. THIRD MARRIAGE DURING SECOND BIGAMOUS MARRIAGE. Third marriage after second void marriage may not be bigamy, § 1686. IV. ACCESSARIES. If a misdemeanor, all concerned are principals, § 1687. Hence person marrying bigamous person is principal, § 1688. V. WHEN SECOND MARRIAGE WAS VOID OR VOIDABLE. No defence that bigamous marriage was independently voidable, § 1689. VI. WHERE FIRST MARRIAGE WAS VOIDABLE. No defence that first marriage was voidable, § 1690. VII. PARTIES BEYOND SEAS, OR ABSENT. Exception of beyond seas does not apply to cases where offender knows of continuous life of absentee, § 1691. Exception as to other absence only applies to cases where there is no knowledge of such life, § 1692. Exception does not apply to party deserting, § 1693. VIII. CONSUMMATION NOT NECESSARY, § 1694. IX. INTERMEDIATE DIVORCE. Valid divorce from first marriage is a defence, § 1695. Honest belief in a divorce no defence, § 1695 a. X. EVIDENCE. 1. Proof of Marriage. In bigamy prior marriage has to be proved beyond reasonable doubt, § 1696. Consensual marriage valid, § Lex fori determines as to requi- Of foreign marriages registry is 2. Proof of Death or Divorce of Divorce to be proved by record, § 1704 a. Honest belief in death or divorce within that time no defence, § 1705. Presumption of continuance of life depends on circumstances, § 1706. After seven years, burden is on prosecution to prove knowledge by defendant, § 1708. 3. Witnesses. When first marriage is proved, second wife is a witness, § 1709. Other witnesses admissible to prove marriage, § 1710. XI. INDICTMENT. Second marriage must appear to be unlawful, § 1711. Variances as to second marriage are fatal, § 1712. Exceptions in statute need not be negatived, § 1713. First marriage must be averred, § 1714. XII. RELIGIOUS PRIVILEGE no Defence. No defence that polygamy was a religious privilege, § 1715. § 1682. BIGAMY is committed by a party who, when already legally married to one person, marries another person.1 At common The following is from Steph. Dig. C. L. art. 257: "Every one commits the felony called bigamy, and is liable, upon conviction thereof, to a maximum punishment of seven years' penal servitude, who, being married, marries any other person during the life of his or her wife or husband.1 4 "The expression 'being married' means being legally married. The word 'marries' means goes through a form of marriage which the laws of the place where such form is used recognizes as binding, whether the parties are by that law competent to contract marriage or not, and although by their fraud the form employed may, apart from the bigamy, have been insufficient to constitute a binding marriage. "Provided, that this article does not extend, “(i.) 6 To a second marriage contracted elsewhere than in England and Ireland by any other than a subject of her Majesty; nor, 1 24 & 25 Vict. c. 100, s. 57, as explained by the authorities referred to in the Illustrations. 2 See Illustration (2). 3 Burt v. Burt, 29 L. J. (Probate), 133. 4 See Illustratien (3). 5 See Illustration (4). 6 The act does extend to a subject of her Majesty who has contracted a second marriage in Scotland during the lifetime of a wife previously married in Scotland. R. v. Topping, Dears. 647. The same rule would, of course, "(ii.) To any person marrying a second time, whose husband or wife has been continually absent from such person for seven years then last past, and has not been known by such person to be living within that time. "The burden of proving such knowledge is upon the prosecutor when the fact that the parties have been continually absent for seven years has been proved ; nor, "(iii.) To any person who, at the time of such second marriage, was divorced from the bond of the first marriage, nor to any person whose first marriage has been declared void by the sentence of any court of competent jurisdiction. "A divorce a vinculo matrimonii, pronounced by a foreign court between persons who have contracted marriage in England, and who continue to be domiciled in England, on grounds which would not justify such a divorce in England, is not a divorce within the meaning of this clause. apply to a bigamous marriage in any foreign country. 7%. urgerwen, L. R. 1 C. C. R. 1. 8 R. v. Lolley, R. & R. 237. The decision does not refer to domicil, but this qdalification appears, from later casss, to be required. All the cases on this subject are collected in 2 Sm. L. C. 839-45. The question as to the exact time at which a person can be said to be divorced may arise. In 1 Hale, P. C. 694, a case is mentioned in which a person marrying after sentence of divorce, but pending an ap law bigamy is a misdemeanor.' It was made a felony by statute 1 Jac. I. ch. 11; but this statute is not, as to the grade of the offence, Illustrations. “(1) A. marries B., a person within the prohibited degrees of affinity, and, during B.'s lifetime, marries C. A. has not committed bigamy.' “(2) A. marries B., and, during B.'s lifetime, goes through a form of marriage with C., a person within the prohibited degrees of affinity, A. has committed bigamy. "(3) A. marries B. in Ireland, and, during B.'s lifetime, goes through a form of marriage with C. in Ireland, which is invalid because both A. and C. are Protestants, and the marriage is performed by a Roman Catholic priest. A. commits bigamy.3 "(4) A., married to B., marries C., in B.'s lifetime, by banns. B. (the woman) being married, for purposes of concealment, under a false name. A. has committed bigamy. Every one is a principal in the second degree in the crime of bigamy who, being unmarried, knowingly enters into a marriage which renders the other party thereto guilty of bigamy." This question is discussed in future sections of the text. Infra, §§ 1687-8. In Reynolds v. U. S., 98 U. S., 145, Waite, C. J., said ; "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon church, almost exclusively a feature of the life of Asiatic and African people. At common law the second marriage was always void (2 Kent's Com. 79), and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I., it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because, upon the separation of the ecclesiastical courts from the civil, the ecclesistical were supposed to be the most appropriate for the trial of 16 (5) A., married to B., marries C. in B.'s lifetime, in the colony of Victoria. In order to show that A. committed bigamy, it must be proved that the form by which he was married was one recognized as a regular form of marriage by the law in force in Victoria." 115 In art. 258, Steph. Dig. C. L., the matrimonial causes and offences against law is thus further stated: peal, was held to be within a similar proviso in 1 Ja c. 11 In R. v Hale, tried at the Leeds Summer Assizes, 1875, a woman pleaded guilty to a charge of bigamy before Lindley, J., she having married after the decree nisi was pronounced, but before it became absolute, which it afterwards did. The judge's attention, however, was not directed to the passage in Hale. 1 R. v. Chadwick, 11 Q B 205 the rights of marriage, just as they 2 R. v. Brawn, 1 C. & K. 144; R v. Allen, L. R. 1 C. C. R. 367. 3 R. v. Allen, ub. sup pp 373-5, disapproving of R v. Fanning, 17 Ir. C. L 289. 4 R. v. Parson, 5 C & P. 412 In R Rea, the prisoner, at the bigamous marriage (before the registrar), gave a false Christian name, and was held to be rightly convicted. 6 Burt v Burt, 29 L. J. (Probate), 133. 6 R v. Brawn, 1 C & K 144. State v. Darrah, 1 Houst. C. C. 112. |