in this State, or, if the marriage with such other person take

riage in all respects legal, except that the first husband or wife was then alive. Id. § 205.

Where a woman married her second husband abroad, in the lifetime of the first, and afterwards the first died; and then she married a third in England, in the lifetime of the second, and for this third marriage she was indicted; upon proof that the first husband was living when the second marriage was had, it was held a good defence to the indictment, the second marriage being a nullity, and the third therefore valid. Lady Madison's case, 1 Hale P. C. 693. But the prior marriage must be shewn to be absolutely void; for if it were only voidable, and not avoided previous to the second marriage, it is no defence. 3 Inst. 88.

In R. v. Brown, &c., 1 Car. & Kirw. 144; 47 Eng. Com. Law Rep. 144, it was objected that the second marriage, being by statute void, could not be good to sustain the charge of bigamy; Lord Denman, C. J. said: "The validity of the second marriage does not affect the question. It is the appearing to contract a second marriage, and going through the ceremony, which constitutes the crime of bigamy, otherwise it could never exist in the ordinary cases; as a previous marriage always renders null and void a marriage that is celebrated afterwards by either of the parties during the lifetime of the other." Had the first marriage been by statute void, it would have been a defence. Starkie on Ev. part 4, p. 1187; Rep. Rev. C. V. p. 972, note.

Marriage is in law complete when parties, able to contract and willing to contract, have actually contracted to be man and wife in the forms and with the solemnities required by law. Consummation by carnal knowledge is not necessary to its validity. Whart. Am. Crim. Law, (4th edi.) § 2635; State v. Patterson, 2 Iredell 246.

When the first marriage is proved, the second wife is admissible as a witness either for or against the prisoner. Id.; 1 Hale 693; 1 East P. C. ch. 12, § 9; 1 Hawk. ch. 42, § 8; 1 Russ. on Crimes 218; 2 Stark. Ev. 656. She may be admitted as a witness to prove the second marriage, as well as other facts, not tending to defeat the first, or to legalize the second. 2 Greenl. Ev. § 206.

A marriage contracted in Virginia after the secession of the State of Virginia and before the re-establishment of the government under the Alexandria Constitution, is not therefore invalid. O'Neale v. Com., 17 Gratt. 582.

On a trial for a bigamy, where the charge in the indictment is that the first marriage took place in another State or country, it must be proved to the satisfaction of the jury that a valid marriage had taken place as stated. Id.

In such a case the admissions of the prisoner and his acts are competent evidence to prove the marriage without producing the record, or a witness present at the marriage. Id.

place out of the State, shall thereafter cohabit with such other person in this State, shall be confined in the penitentiary not less than three nor more than eight years. (1 R. C. p. 400, ch. 106, § 19; Acts 1839, p. 46, ch. 74; 1847-8, p. 111, § 2 ; 1866, p. 83, § 1.)

§ 2. The preceding section shall not extend to a person whose former husband or wife shall have been continually absent from such person for seven years next before the marriage of such person to another, and shall not have been known by such person to be living within that time; nor to a person who shall, at the time of the subsequent marriage, have been divorced from the bond of the former marriage, or whose former marriage shall at that time have been declared void, by the sentence of a court of competent jurisdiction. (Id.)

§ 3. If any person marry, in violation of the ninth and tenth sections of chapter one hundred and eight,3 he shall be confined in jail not more than six months, or fined not

2 This exception, according to its express words, only applies when the party marrying again has no knowledge that the former husband or wife is alive. Whether the party be not bound to use reasonable diligence to inform himself of the fact; and still more, whether, if he neglect or refuse to avail himself of palpable means of acquiring such information, he will stand excused, are questions deserving mature consideration, but which do not appear to be settled. Whart. Am. Crim. Law, 4th edi. § 2630; 1 East P. C. 367; Davis' C. L. 136.

3 The tenth and eleventh sections of chapter one hundred and eight are as follows:

§ 10. No man shall marry his mother, grand-mother, step-mother, sister, daughter, grand-daughter, half-sister, aunt, uncle's wife, son's wife, brother's wife, wife's daughter, or her grand-daughter or step-daughter, brother's daughter, sister's daughter, or wife of his brother's or sister's son.

§ 11. No woman shall marry her father, grand-father, step-father, brother, son, grandson, half-brother, uncle, aunt's husband, daughter's husband, husband's son, or his grandson or step-son, brother's son, sister's son, or husband of her brother's or sister's daughter.

So much of the eleventh second as prohibits a woman's marrying her aunt's husband is repealed. Acts 1850-51, ch. 43, p. 35.

An indictment against an uncle and niece, which charges that the uncle

exceeding five hundred dollars, at the discretion of the jury. And if any person, resident in this State, and within the degrees of relationship mentioned in those sections, shall go out of this State for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be as guilty and be punished as if the marriage had been in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage. (1 R. C. p. 399, § 18. Acts 1847-8, p. 111, § 8; 1866, p.

83-4, § 3.)

§ 4. If any clerk of a court, knowingly, issue a marriage license contrary to law, he shall be confined in jail not more than one year, and fined not exceeding five hundred dollars. (Acts 1847-8, p. 111, § 9, 10.)

§ 5. If any person, knowingly, perform the ceremony of marriage without lawful license, or officiate in celebrating the rites of marriage, without being authorized by law to do so, he shall be confined in jail not more than one year, and fined not exceeding five hundred dollars. (1 R. C. p. 401, § 23. Acts 1866, p. 84, § 5.)

Adultery, &c.

§ 6. If a free person commit adultery or fornication,' he

intermarried with the niece and that they cohabited together, is a good indictment against both, although it be not stated, in terms, that the niece intermarried with the uncle. For it is impossible that the uncle could have intermarried with the niece, unless she had also intermarried with him. Hutchins v. Com., 2 Va. Cas. 331.

If any man have married his uncle's widow since the twenty-eighth of March, eighteen hundred and fifty-one, such marriage is hereby declared to be legal and valid, and exempt from the penalties prescribed by any existing laws. But this act shall not be construed to sanction any such marriage as may have occurred prior to the date aforesaid or which may hereafter occur. Passed 28th February, 1852; Acts 1852, ch. 103, p. 83.

The marrying a brother's widow is an offence within the statute. v. Perrymans, 2 Leigh 717.

Com.

4 Illicit intercourse between an unmarried man and a married woman, is

shall be fined not less than twenty dollars. (1 R. C. p. 555, §6; Acts 1847-8, p. 110, §1.)

§ 7. If any persons, not married to each other, lewdly and

fornication in the man. Com. v. Lafferty, 6 Gratt. 672. It is adultery in the woman. 1 Yeates 6; 2 Dall. 124; Mayo's Guide to Mag. 33.

Adultery or fornication committed with a slave is a violation of the act. Com. v. Jones, 2 Gratt. 555.

In an indictment for lewd and lascivious cohabitation, the offence is charged from a day prior to the day when the statute went into effect, but as continuing to a day after the commencement of the act. The indictment is good. Nichols and Jones' case, 7 Gratt. 589.

The offences of adultery, fornication, and the like, cannot be punished by our courts of law, as common law offences, unless they be accompanied with other circumstances, which of themselves constitute a misdemeanor; such as the public commission of the act, or a conspiracy. The statutory offence must be punished according to the statute. Anderson v. Com., 5 Rand. 628; Com. v. Isaacs and West, 5 Rand. 634. See 2 Archb. Cr. Pl. & Prac. 1033-4, 1040. Simple incontinence is not punishable at common law. Com. v. Jones, 2 Gratt. 555.

An indictment which alleges that P. M., on a certain day, and at a certain place, "did commit the crime of adultery with one M. S., by then and there having carnal knowledge of the body of said S., she the said S. then and there being a married woman, and having a husband alive," is not sufficient to support a conviction. These allegations do not shew, with certainty, that M. S. was not the wife of P. M. Moore v. Com., 6 Metcalf 243. But where it is distinctly alleged in the indictment, that the person with whom the crime was committed is the wife of a certain person other than the defendant, as one Catharine Ann Smith, then the lawful wife of Peter J. Smith," it is sufficient. Com. v. Reardon, 6 Cushing 78.

An allegation that the offence was committed "with a certain woman, whose name to said jurors is unknown," &c., the defendant "being then and there a married man, and then and there having a lawful wife alive, other than said woman, whose name to said jurors is unknown as aforesaid," is a sufficient description of the person with whom the offence is alleged to have been committed. Com. v. Thompson, 2 Cushing 551.

In a recent case in Maine, The State v. Thrustin, 35 Maine 205, (1853,) the indictment charged that the defendant, at Avon, "on the 25th day of March, 1851, did commit the crime of adultery with one Emeline Whitehouse, the wife of one Solomon H. Whitehouse, she, the said Emeline Whitehouse, being a married woman, and the lawful wife of him, the said Solomon Whitehouse." Howard, J., in delivering the opinion of the court, said: "In this case, the fact of committing the crime of adultery, at a certain time and place, with Emeline Whitehouse, is first alleged against the

lasciviously associate and cohabit together, or, whether married or not, be guilty of open and gross lewdness and lasciviousness, they shall be fined not less than fifty nor more than five hundred dollars; and upon a repetition of the offence, and conviction thereof, they shall also be imprisoned in the county or corporation jail, at the discretion of the court, for not less than six nor more than twelve months. (Acts 1847-8, p. 111, § 3; 1866, p. 84, § 7.)

§ 8. Any white person who shall intermarry with a negro shall be confined in jail not more than one year, and fined not exceeding one hundred dollars. (Acts 1847-8, p. 111, § 4.)

§ 9. Any person who shall perform the ceremony of marriage between a white person and a negro, shall forfeit two hundred dollars, of which the informer shall have one-half. (1 R. C. p. 401, § 33. Acts 1847-8, p. 111, § 5.)

§ 10. If a free person keep a house of ill-fame, resorted to for the purpose of prostitution or lewdness, he shall be confined in jail not more than one year and fiued not exceeding two hundred dollars. (Id. § 6.)

§ 11. If a free person import, print, publish, sell or distribute any book, or other thing, containing obscene language, or any print, picture, figure, or description, manifestly tending to corrupt the morals of youth, or introduce into any family or place of education, or buy or have in his

accused; but to the fact that she was a married woman, and the wife of another, no time is averred, nor is there a reference to the certain time before stated, by the words then and there, or any equivalent terms. Although we can readily suppose what was intended by the averments, yet, in criminal pleading, nothing can be taken by intendment. The allegation 'being a married woman, and the lawful wife of Solomon H. Whitehouse,' has reference to the time of finding the indictment, and not to the time of the offence, in strictness of criminal law. Bridges' case, Cro. James 639; 2 Lord Raymond 1467; 2 Chitty Crim. Law 181. The indictment is, therefore, insufficient.

Parties to the crime of adultery may be jointly indicted. Com. v. Elwell, 2 Metcalf 190.

One credible witness is now sufficient to authorize a conviction for adul tery or fornication. Com. v. Cregor, 7 Gratt. 591.