CHAPTER VI. Offences against the Public Peace and Public Morals, and other miscellaneous offences, punishable by Imprisonment in a State Prison. 1. Duelling, and challenges to fight. 2. Unlawful marriages, and incest. 3. Offences against public decency; malicious mischief; compounding offences; crime against nature. 1. DUELLING, AND CHALLENGES TO FIGHT. Deliberate duelling is where both parties meet avowedly with intent to murder; and therefore the law has justly fixed the crime and punishment of murder in case death ensues, upon those who engage in it, and upon their seconds. (a) And it is a very high offence, at common law, to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endeavor to provoke another to send a challenge, or to fight, as by dispersing letters to that purpose full of reflections, and insinuating a desire to fight, &c.;(b) or by posting a man as a coward, &c., or using opprobrious expressions calculated to produce a breach of the peace. (c) The provisions of the revised statutes on this subject are as follows: Every person who shall fight a duel with any deadly weapon, although no death ensue, shall, upon conviction, be punished by imprisonment in a state prison for a term not exceeding ten years. Every person who shall challenge another to fight such duel, or who shall send or deliver any written or verbal message purporting or intended to be such challenge; or who shall accept any such challenge or message; or who shall knowingly carry or deliver any such challenge or message; or who shall be present at the time of fighting any duel with deadly weapons, either as second, aid or surgeon; or who shall ad (a) 4 Black. Com. 199. (c) Crown Cir. Comp. 115. (b) 1 Hawk. 7th ed. vol. 2, p. 19. vise or give any countenance or assistance to such duel; shall upon conviction, be punished by imprisonment in a state prison for a term not exceeding seven years. Every person offending against either of the above provisions shall be a competent witness against any other person offending in the same transaction, and may be compelled to appear and give evidence before any grand jury or in any court, in the same manner as other persons; but such testimony shall not be used against the witness himself. Every person convicted of fighting a duel with any deadly weapon, shall be incapable of holding or of being elected or appointed to any office, place, or post of trust or emolument civil or military under the constitution and laws of this state. If any inhabitant of this state shall leave the same, for the purpose of eluding the operation of the provisions of the statute, with the intent of giving or receiving any challenge therein prohibited, or of aiding or abetting in such intent, and shall give or receive any such challenge, or shall aid and abet in giving and receiving the same, without this state, he shall be deemed as guilty, and shall be subject to the like punishment as if the offence had been committed within this state. Every such offender last above mentioned may be indicted and brought to trial in any county of this state, which shall be designated by the governor for that purpose, and where in his opinion, the evidence can be most conveniently obtained and produced. Every such offender may plead a former conviction or acquittal for the same offence in another state or country; and if such plea be admitted or established it is to be a bar to any further or other proceedings against such person for the same offence. (d) And in another part of the revised statutes the wounding another in a duel out of the state by an inhabitant or resident of this state, of which wound the person injured shall die within this state, is declared murder within this state, in the principal and seconds; who may be indicted, tried, and convicted in the county where the death shall happen. (e) But any person indicted under the above section may plead a former conviction or acquittal for the same offence in another state or country.(ƒ) No particular form of words is necessary to constitute a challenge. Parol testimony is admissible to explain it.(g) Whether the words used amount to a serious challenge to fight, or were a mere effusion of pas (d) 2 R. S. 686, Art. 1, Tit. 5. (e) Id. 657, § 6. (f) Id. ib. § 7. sion, is a question for the jury. (h) Expressing a readiness to accept a challenge does not constitute one.(i) A challenge to fight a duel out of the state is indictable; for its tendency is to produce a breach of the peace.(k) 2. UNLAWFUL MARRIAGES OR BIGAMY, AND INCEST. Unlawful marriages or bigamy.] The offence of bigamy, or as it might more properly be termed, polygamy, consists in having a plurality of wives or husbands at the same time.(1) Our statute on this subject is as follows: Every person having a husband or wife living, who shall marry any other person, whether married or single, shall, except in the following cases, be adjudged guilty of bigamy, and liable to be punished by imprisonment in a state prison for a term not exceeding five years. These provisions do not extend to the following cases: 1st. To any person by reason of any former marriage, whose husband or wife, by such marriage, shall have been absent for five successive years, without being known to such person, within that time, to be living: nor 2d. To any person by reason of any former marriage, whose husband or wife by such marriage shall have absented himself or herself from his wife or her husband, and shall have been continually remaining without the United States, for the space of five years together; nor 3d. To any person by reason of any former marriage, which shall have been dissolved by the decree of a competent court for some cause other than the adultery of such person; nor 4th. To any person, by reason of any former marriage which shall have been pronounced void by the sentence or decree of a competent court, on the ground of the nullity of the marriage contract; nor 5th. To any person by reason of any former marriage contracted by such person within the age of legal consent, and which shall have been annulled by the decree of a competent court; nor 6th. To any person by reason of any former marriage who shall have been sentenced to imprisonment for life. An indictment may be found against any person for a second, third, or other marriage prohibited by the statute, in the county in which such person shall be apprehended, and the like proceedings, trial, judgment and (h) 2 Nott & McCord, 181. 3 Wheeler's Cr. C. 245. 3 Rogers' Rec. 133. (i) 1 Dana's Rep. 524. (k) 1 Hawk's Rep. 487. (1) 4 Black. Com. 163. 1 Bac. Abr. 525, note. conviction may be had in such county, as if the offence had been committed therein. If any unmarried person shall, knowingly, marry the husband or wife of another, in any case in which such husband or wife would be punishable according to the provisions of the statute, such person, on conviction, shall be imprisoned in a state prison not more than five years, or in a county jail not more than one year, or shall be fined not more than $500, or shall be subject to both such fine and imprisonment.(m) Though the penal consequences of a second marriage do not apply in these excepted cases, yet unless the first marriage shall have been annulled or dissolved for some cause other than the adultery of the party, or the former husband or wife shall have been sentenced to imprisonment for life, such second marriages are absolutely void, in all cases except where the former husband or wife shall have been absent for five years, at the time of the second marriage. In these cases, the second marriage is void only from the time that its nullity shall be pronounced. (n) After a divorce on the ground of adultery, the complainant may marry again; but the defendant, or guilty party, cannot marry again, during the life of the complainant, without incurring the penalty of bigamy.(0) As to the manner of solemnizing marriages in this state, see 2 R. S. 138. If the first or second marriage was celebrated in this state, the offence of bigamy is not committed unless it is a valid marriage within the provisions of the statute, or of the law previously existing. It is to be noticed, however, that the statute excepts Jews and Quakers from its provisions relative to the form and proof of marriages. (p) It is a general rule that a marriage valid where contracted is valid every where ;(q) even though the parties went into another state for the purpose of evading the laws of their own state. (r) In those states where there are no statutes regulating marriage contracts, consent alone to a contract of marriage, in the present tense, or a contract entered into by words concerning the future, followed by consummation, makes a valid marriage.(s) If the first or second marriage took place abroad, circumstances should be proved sufficient to enable the jury to presume that the manner of celebration was valid according to the law of the place.(t) (m) 2 R. S. 687. 8 id. 433. Story's Confl. of L. 100. Ros (n) Id. 74, §§ 4, 5. 4 John. 42. 1 coe's Cr. Ev. 237. John. Ch. R. 389. (0) 2 R. S. 146, § 47. (p) Id. 141, § 19. (9) 3 Phillim. Ecc. R. 58. (r) 16 Mass. R. 157. 1 Pick. 506, 139. (s) 4 John. 22. 2 Haggard, 54, 81. 7 Mass. R. 48. 1 Day, 111. 2 N. Hamp. Rep. 268. (t) 3 Stark. 178. If the first marriage is void, an indictment for bigamy cannot be sustained. Thus if a woman marry A., and in the life time of A. marry B., and after the death of A. and while B. is alive, marry C., she cannot be indicted for bigamy in her marriage with C., because her marriage with B. was a mere nullity.(u) So in cases where the first marriage is declared by the statute to be void, as being incestuous. (v) To constitute the offence of bigamy it is sufficient that the second marriage be a marriage de facto; and an objection to the validity of the marriage, applies only to the first marriage.(1) Indictment.] The provisions of the statute as to the venue, in indictments for bigamy, have been given. The indictment must state both marriages, and that the former consort was alive at the time of the second marriage.(w) To this statement no venue need be inserted. (x) But it is not necessary that the first wife should be alive at the time the indictment is found.(y) If the prisoner write down the names for publication of the banns, he will be precluded thereby from saying that the woman was not known by the name he delivered in, and that she is not rightly described by that name in the indictment.(z) Evidence.] The prosecutor must prove, 1. The prisoner's first marriage; 2. His second marriage; 3. That his first wife was alive at the time of the second marriage. (a) The mere presumption as to continuance of life is not sufficient evidence of the existence of the first consort without some positive proof of the fact; although five years have not expired. (b) A marriage in fact is sufficient evidence of the first marriage, whether celebrated here or abroad, according to the laws of that country; (c) although it be voidable, provided it be not absolutely void. (d) The first wife cannot be admitted as a witness against her husband, or vice versa; for by the very scope of the prosecution the first marriage was valid. (e) But the second wife may be a witness, after the first marriage has been established, for no legal relationship exists between them. (ƒ) Upon indictments for bigamy it has been held not to be sufficient to prove a marriage by reputation; but that either some person present at the marriage must be called, or the original register, or an examined |