
    The People vs. John Whigham, alias, John Wiggins.
    .The ,belief of a witness on a charge of bigamy to ldentlty of person, who is conscienÍ10US ofs.w.ear is sufficient ; m^sly'ingriie is the same
    thata“ar nage in fact must be provoutionforbigamy, means th^n^-oof of the marriage, un g°u i shed cohabitation, reputation, acknowledgment of parties,reception, &c.
    
      Bigamy.
    
    The prisoner was charged with the crime of ° . ° J It appeared by the testimony, that Whigham married a certain Mary Boyd, on the 18th of July, 1818, in Brooklyn, Kings County: and afterwards, in the city of New York, married a certain Harriet Ann Eliza Robertson, on the 4th of December, 1822.
    The Rev. John Ireland was called, who testified that he had married the prisoner to Mary Boyd, in A j j j j' i in the presence of a number of people, in his parlour ; and that he believed the prisoner at the bar to be the same man he married to Mary Boyd.
    He was asked by Dr. Graham, counsel for the prisoner, if he was not certain : he replied in the negative, and observed that witnesses in this, and other courts, had sworn to identity of person, and afterwards had , , . ■ ' , , ' themselves mistaken : and refused to swear positive that the prisoner was the man he married.
    
      Dr. Graham objected to such indefinite and loose testimony.
    
      Maxwell, District Attorney,
    
    replied that the marriage in fact, intended by Ld. Mansfield, was nothing more than positive or satisfactory proof of the marriage, made out in the usual way, .and as contradistinguished from proof of hearsay and reputation.
   By the Court.

“We think the testimony of Dr. Ire- “ land sufficiently explicit and positive. He is conscien- “ tious against swearing positive, and chooses this mode, “ as in his opinion the most safe and prudent : he has “ no doubt.that he is the man : he believes him to be the “ man, &c. ; but will not swear positively that he is, for “ the reason he has given. And that in the opinion of the “ Court, is equivalent to saying he is the same person.”

The Rev. Merrit Haviland South proved he married the prisoner to Miss Harriet Ann Eliza Robertson, on the 14th day of September, 1822, in the City of New York, in the presence of her mother, and others.

Dr. Graham, for the prisoner, rested his defence on a principle of law. He contended that a marriage in fact must be proved, and could not be implied, and which had not been done in the case now before the court. In support of his position he cited 4 Burr, 2057-8-9, decided by Ld. Mansfield, and also 7th Johnson, p. 315, which he contended went to show that a marriage in fact must be proved upon the trial, or in other words, cohabitation must be shown. The Doctor went into an argument of considerable length and great ability, to show that a marriage in fact must be proved, in which he took an extensive view of the civile and canon law in respect to this crime.

By the Court.

“The evidence against the prisoner is “ strong and conclusive. The testimony of Dr. Ireland is “ of such a nature as to leave no doubt in the mind of any “reasonable man. The testimony of Rev. Mr. Smith is “ still more explicit. The counsel for the prisoner has “ taken the only ground that he could take, and yet that “fails him. The offence is a gross violation of moral “ decency, and has, in most countries, been severely pun- “ ished. In this country it has been made highly penal “ by statute. And it is proper it should be so : for Yew “ crimes can have a more fatal tendency, either as to pub- “ lie example or private suffering. In the case now before ‘‘ the Court, two innocent females have been ruined by “ the crimes of the prisoner. If you believe the testimony “ the prisoner is certainly guilty ; if not, you will acquit him.”

The jury found the prisoner guilty, and he was sentenced to five years’ servitude in the State Prison.

Note.—Bigamy has been defined to be “having a plurality of wives at the same time,” Blac. Com. p. 163. It was made felony without benefit of clergy by Stat. 4 Edw. 1 C. 5. and again brought within clergy by the ¿ Edw. 1 C. 12 § 16 : and by 1 Jac. 1. C. 11. there are five exceptions in this act, making the marriage no felony, one of the parties being alive.

1. Where one of the parties.has been out of the kingdom for the space of five years, either with or without notice of the other party being alive.

2. Where either of the parties have'absented themselves from the other 7 years, within the kingdom, and no knowledge of the party being alive within the time.

3. Where there is a divorce a mensa et thoro.

4. Where the first marriage is declared void, and the parties loosed a vinculo.

5. Where .either party was under the age of consent, and! subsequent ratification of the marriage, 3 Inst. 89. Kel. 27. Hale P ' C. 694.

Our Statute relating*to and defining this crime is found 1 Vol. Rev. Laws,, p. 113. The Statute makes it felony for any person being married or who shall hereafter marry, to at the same time marry any person or persons, their former husband or wife being alive.

The exceptions in this act are nearly similar to the English Statute. They are as follows:

1. Where one of the parties shall be continually remaining out of the United States for the space of 5 years.

2. Where one of the parties has absented himself or herself from the other, the one not knowing the other to be living within that time.

3. Where the parties are divorced.

4. Where the former marriage is declared void and of no effect.

5. Where the marriage is had, orto be had, or made within the age of consent.

Under this statute the following cases, among others, have been decided.

Vide Teunis Van Pelt’s case, City Hall Rec. vol. 1. p. 137.

In*a prosecution of a woman for bigamy, evidence of barbarous treatment by the first husband, before the marriage with the second took place’ is inadmissible, but will be received by the court in mitigation of her punishment, Ibid vol. 1. p. 171.

To Elizabeth Steer’s case, City Hall Rec. vol. 2. p. 111. there is this Syllabus. On a traverse of an indictment for bigamy against S. for that on the 16th of March, 1815, she married, I. S. being alive, &c., contrary to the form of the statute, &c. It appeared by the testimony of K., a divine, that on the day first above mentioned, he married a woman of the name of S. to I. S., but that he, K., did not know that S. the prisoner, was the same person he so married; it was held that although this was sufficient evidence of a marriage defacto, of the person of the name of S., and therefore, that collateral evidence to identify such person, might be given, yet that the prosecutor should be precluded from establishing the second marriage, by cohabitation or otherwise, without first proving that S. the prisoner, was the identical person so married by K.

The statute of bigamy does not render a second marriage legal, notwithstanding the former husband or wife may have been absent about S.years, and not heard of. It merely purges the felony, Fenton v. Reed, 4 Johns. Rep. 42. In- all cases except bigamy and criminal conversation, a marriage may be proved from cohabitation, reputation, acknowledgment of parties, reception in the family, and other circumstances. Ibid.

In a prosecution for bigamy, as well as actions for crim. con. the mere confession of the party is not sufficient evidence of the first marriage. A marriage in fact must be proved. The People vs. Humphrey.-, Johns. Rep. 314. *  