she should return, the marriage might be void, it certainly would be straining the law to hold such one criminally guilty in doing an act which he or she, by law, might properly presume to be a lawful act.1 The other class includes such as are unlawfully divorced, being innocent. Under the law he or she is entitled to have the marriage contract dissolved. Certainly, without any proviso or exception, no such person, on marrying again, could be deemed to be guilty of polygamy; and it is not improbable that the exception was inserted out of extreme caution, and possibly because the act of 1784 had an exception of a similar character. It was this: "Provided also, that this act, or anything therein contained, shall not extend to the wife of any married man who shall willingly absent himself from his said wife, by the space of seven years together, without making suitable provision for her support and maintenance in the meantime, if it shall be in his power so to do."

The statute of 1784 was but a re-enactment, with, of course, a different penalty, of the Province Law of 6 William and Mary (1694-95),2 against polygamy, with a proviso in relation to continuous absence, in almost the identical language of the General Statutes.3 The statute of 6 William and Mary,4 contains also a proviso excepting from its operation divorced parties, but does not distinguish between the guilty and innocent party, its language being, "shall not extend to any person or persons that are, or shall be at the time of such marriage, divorced by any sentence had, or hereafter to be had, as the law of the province in that case has provided."

Whether the guilty party would at that time have been deemed a divorced party, it is not necessary to inquire. Four years later, by statute 10 William III. (1698),5 the proviso in relation to time of absence was modified, and it was enacted, "that if any married person, man or woman, has lately or shall hereafter go to sea in any ship or other vessel, bound from one port to another, where the passage is usually made in three months' time, and such ship or vessel has not been, or shall not be heard of within the space of three full years next after their putting to sea from such port, or shall only be heard of under such circumstances as may rather confirm the opinion, commonly received of the whole company being utterly lost, in every such case, the matter being laid before the Governor and Council, and made to appear, the man or woman, whose relation is in this manner parted from him or her, may be esteemed single and unmarried, and upon

such declaration thereof, and license obtained from that board, may lawfully marry again, any law, usage or custom to the contrary notwithstanding."1

Such being the history of the law and its condition till 1841, we feel warranted in inferring that, at that time, the Legislature did not deem the marriage of the guilty party who had been divorced to be polygamy, for in that year was enacted the following statute:

"Whenever a divorce from the bond of matrimony shall be decreed for any cause allowed by law, the guilty party shall be debarred from contracting marriage during the lifetime of the innocent party; and if the guilty party shall contract such marriage the same shall be void, and such party shall be adjudged guilty of polygamy."2 This is substantially re-enacted in the General Statutes. 3

This kind of legislation has many precedents. Any person who embezzles property is deemed by the statute to have committed the crime of larceny; it is not sufficient, however, in an indictment for such offense, simply to charge stealing in the usual manner, but the facts which constitute the embezzlement must be set out, with the averment of the legal conclusion that thereby and by force of the statute the party charged has committed the crime of larceny.

If, however, we assume that, prior to the statute of 1841, a divorced party, being the guilty cause of the divorce, might be guilty of polyg amy by marrying again during the life of his former wife, still the result must be the same, in this case, as if no offense could, prior to that statute, be committed, for it is quite clear that, under the existing statutes, the crime of polygamy may be committed by persons under entirely diverse circumstances, and, by the familiar rules of pleading, a party charged with an offense is entitled to a statement in the indictment of the facts which constitute the offense; and if an offense may be committed in either of various modes, the party charged is entitled to have that mode stated in the indictment which is proved at the trial; and when one mode is stated and proof of the commission of the offense by a different mode is offered, such evidence is incompetent by reason of variance. It is clear, therefore, that whether we decide that the offense of polygamy might have been committed by the guilty divorced party or not, the result must be the same, for the facts proved would show either that no crime was committed, or, if committed, there was a variance between the allegata and the probata.

11 Prov Laws, 353.

2 Stat. 1841, ch. 83.

New trial ordered.

8 ch. 107, sec. 25.

INCEST-ASSENT OF BOTH PARTIES NECESSARY.

STATE V. THOMAS.

[53 Iowa, 214.]

In the Supreme Court of Iowa, March, 1880.

Assent by both Parties is a necessary ingredient of the crime of incest.

APPEAL from the Floyd District Court.

The indictment in this case contains two counts. In the first the defendant is charged with having committed rape upon one Electa Thomas. In the second he is charged with having had carnal knowledge of one Electa Thomas, his daughter, and it is stated that the matters and things charged in the second count are the same transaction charged in the first count. The defendant demurred to the indictment, on the ground that it charges two distinct offenses, rape and incest, and is accordingly bad for duplicity. The court overruled the demurrer, and the defendant was found guilty upon both counts. Upon the first count the court upon motion set aside the verdict. Upon the verdict upon the second count the court rendered judgment. The defendant appeals. J. S. Root and F. M. Goodykoontz, for appellant. J. F. McJunkin, Attorney-General, for the State.

ADAMS, C. J., delivered the opinion of the court.

Section 4030 of the Code provides that "if any persons within the prohibited degrees carnally know each other, they shall be deemed guilty of incest." The second count of the indictment, which is the count in question, does not charge that the defendant and Electa Thomas carnally knew each other. It merely charges that the defendant had carnal knowledge of Electa Thomas, his daughter. It was assumed, however, by counsel and by the court below that the count was sufficient to charge incest, and it is that alone of which the defendant stands convicted. The question argued by counsel and presented for our decision is as to whether rape and incest are necessarily distinct offenses, or whether they may, if the parties are related within the prohibited degrees, as in this case, be a compound offense.

The theory of the counsel for the State is that if a man has carnal knowledge of a woman related to him within the prohibited degrees, he is necessarily guilty of incest; and if he has carnal knowledge of her by force, he is also guilty of rape; so that the crime of rape committed by one person upon another, related within the prohibited degrees, necessarily includes incest, and that the guilty person may be charged with both in the same indictment, and convicted of the latter, if not of

the former. Consent of course excludes rape.

Whether force and

want of consent exclude incest, must be determined by the construction which should be put upon the section of the Code above cited. In construing that section it is to be observed that to constitute the crime of incest the parties must have carnal knowledge of each other. It is not sufficient that the man should have carnal knowledge of the woman, unless it follows that in such case she would necessarily have carnal knowledge of him.

We come, then, to the question whether it can be said that a woman who is ravished has carnal knowledge of the man within the meaning of the statute. In our opinion it can not. The very use of the word knowledge indicates that the connection is to be deemed one of the mind as well as the body. It is further to be observed that the statute seems to imply that a person is not to be deemed singly guilty of incest. The language is: "They shall be deemed guilty of incest." Possibly, if the connection should be accomplished by fraud, the party perpetrating the fraud might be deemed guilty of incest. The innocent party of course could not be. Again, it is easy to see that rape and incest have each a distinct element of criminality. The use of force is criminal, but the criminality is essentially different from the corruption of the mind of the other party where force is wanting.

As favoring the construction contended for by the counsel for the State the case of Commonwealth v. Goodhue,1 is cited. In that case it was held that the defendant might be convicted of incest, notwithstanding the illicit connection might have been accomplished by force. The same was held in People v. Rowle.2 The latter decision was made under a statute similar to ours, but it is not entitled to much weight as an authority. In People v. Harriden,3 it was held, under a statute similar to ours, that where the illicit connection is accomplished by force the defendant can not be convicted of incest, but only of rape. In Noble v. State, the court assumed and stated by way of argument that the crime of incest can be committed only by two willing parties. Deeming this to be the correct view, it follows that in our opinion rape and incest are necessarily distinct offenses and should not be charged in the same indictment.

BECK and DAY, JJ., dissent.

12 Met. 193.

22 Mich. Nisi Prius Reports, 209.

31 Park. Cr. (N. Y.) 344.

4 22 Ohio St. 501.

Reversed.

BIGAMY-PRIOR VALID MARRIAGE MUST BE PROVED.

DUMAS v.

STATE.

[14 Tex. App. 464.]

In the Court of Appeals of Texas, 1883

1. Bigamy - Proof of Prior Valid Marriage Essential.-A prosecution for bigamy can not be sustained without proof of a prior valid marriage, as well as of a subsequent marriage pending the subsistence of the first; and the penal code of the State enacts that" proof of marriage by mere reputation shall not be sufficient" in a trial for bigamy or unlawful marriage.

2. A Valid Marriage is a marriage solemnized with the legal prerequisites of and in accordance with the lex loci contractus. In Texas, a license is a legal pre-requisite, and the rites of matrimony must be performed by some one of the functionaries authorized by the statute to perform them; and, in a prosecution for bigamy or unlawful marriage, if the issue turn upon the validity of a marriage contracted in Texas since these prerequisites have been in force, that issue is dependent upon proof of them by legal evidence; which may consist of the original license and the return thereon, or of eyewitnesses to the marriage ceremony, or as already indicated, of general reputation in connection with cohabitation, admissions of defendant, etc. In a trial for bigamy, therefore, it was error for the court below to charge the jury, in effect, that a valid marriage could be contracted by any agreement between the parties to be husband and wife, consummated by cohabitation, etc.

3. Evidence. In rebuttal of the State's proof of his first marriage, the defendant introduced the woman alleged to be his first and lawful wife. She refused to testify, but at the instance of the defence was compelled to do so. Held, that she was a competent witness for the defendant, and, like any other witness, could be compelled to testify.

APPEAL from the District Court of Smith. Hon. J. C. ROBERTSON.

Tried below before the

The indictment was presented September 16, 1881, and charged that Asa Dumas, the appellant, did, about June 10, 1881, "marry and take to wife one Dora Guy, a female woman, the said Asa Dumas being then and there an adult male person, and then having a former living lawful wife to whom he had been previously married, to wit, Polly Dumas; contrary to law and against the peace and dignity of the State of Texas." The trial was had at the February term, 1883, of the District Court, and resulted in the conviction of the appellant. A term of three years in the penitentiary was the punishment assessed against him.

M. H. Reed was the first witness presented by the State. He testified that he lived in Hamilton County, was twenty-five years old, and had known defendant ever since he, the witness, could recollect. The defendant was the stepfather of witness, as the latter had always understood. Polly Ann Dumas was the mother of witness, as he had always understood. He was raised by her and the defendant, and had always called them "ma" and "pa." Witness understood that his father had died in the Confederate army. He did not know where the defendant and his mother and himself came from to Texas. They lived a while