him within that provision, he must have been ignorant during the whole of those seven years that she was alive. Reg v. Čullen, 9 C. & P. 681-Patteson. been continually absent from his wife for seven years, and that she was not known to him to be living within that time, is on the prosecution and not on the prisoner, for how can he prove a negative that he did not know. Reg. v. Heaton, 3 F. & F. 819-Wightman. When the prisoner's first wife had left him sixteen years, and it was proved by the second wife that she had known him for nine years When it is proved that the prisliving as a single man, and that she oner and his first wife have lived had never heard of the first wife, apart for the seven years preceding who it appears had been living sev- the second marriage, it is incumbent enteen miles from where the prisoner on the prosecution to shew that durresided:-Held, that on this evi-ing that time he was aware of her dence the prisoner ought to be ac- existence; and, in absence of such quitted on the proviso contained in 9 Geo. 4, c. 31, s. 22. Reg. v. Jones, Car. & M. 614-Cresswell. A woman was convicted on an indictment for bigamy. It appeared that her first husband had been continually absent from her for seven years next preceding the second marriage; on which occasion she represented herself as a single woman, and was married by her maiden name. The jury being asked to consider whether she knew her husband to be alive at the time of the second marriage; and if not, whether she had the means of acquiring the knowledge, found that they had no evidence of her knowledge, but the jury was of opinion that she had the means of acquiring knowledge if she had chosen to make use of them:-Held, that upon that finding the conviction could not be sustained. Reg. v. Briggs, Dears. & B. C. C. 98; 2 Jur., N. S. 1195; 26 L. J., M. C. 7; 7 Cox, C. C. 175. proof, he is entitled to be acquitted. Reg. v. Curgenwen, 10 Cox, C. C. 152; 1 L. R., C. C. 1; 11 Jur., N. S. 984; 35 L. J., M. C. 58; 14 W. R. 55; 13 L. T., N. S. 383. Where no evidence was given on either side as to his knowledge that his wife was alive, but it was proved that they had separated by agreement in 1843, and in 1857 he produced her at a trial in which he was interested:-Held, that it was for the jury to say whether there was an absence of knowledge on his part that his wife was alive in 1855, the date of the second marriage. Reg. v. Cross, 1 F. &. F. 510Cockburn. Evidence of the cohabitation of the first husband with another woman, his reputed wife, before the time of his marriage with the accused, and of such reputed wife being alive after that marriage, is sufficient evidence of a prior marriage to warrant an acquittal. Reg. v. Wilson, 3 F. & F. 119-Crompton. Whether evidence is necessary on the part of the prosecution to shew that the prisoner married, knowing Onus of Proof.]-On a trial his second wife to be alive, depends for bigamy, it was proved that upon the particular fact of each case. the prisoner married A. in 1836, left him in 1843, and married again in 1847. Nothing was heard of A. after the prisoner left him, nor was any evidence given of his age: -Held, that there was no presumption of law, either in favor of or against the continuance of A.'s life v. Ellis,1 F. & F. 309-Willes. It is a question for the jury whether the prisoner knew that his first wife was alive. Reg. v. Dane, 1 F. & F. 323-Bramwell. The burden of proof that a person charged with bigamy has not up to 1847; but that it was a ques- | Jac. 1, c. 11. 454. In 1863 the prisoner married his first wife, lived with her about a week, and then left her. It was not proved that he had since seen her. In 1867 he married another woman, his first wife being then alive. On the trial of an indictment for bigamy, the judge told the jury that they must be satisfied that the prisoner knew that his first wife was alive at the time of the second marriage:-Held, that the direction was right, and that it was not necessary to prove affirmatively that at the time of the second marriage he knew that his first wife was alive. Reg. v. Jones, 21 L. T., N. S. 396-C. C. R. It is a good defence to an indictment for bigamy that the prisoner at the time of the second marriage, honestly and bona fide believed that his first wife was dead, and had reasonable grounds for so believing. Reg. v. Horton, 11 Cox, C. C. 670. 66 3. Where Triable. By 24 & 25 Vict c. 100, s. 57, "the offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the "offender shall be apprehended or "be in custody, in the same manner "in all respects as if the offence had "been actually committed in that "county or place." (Former provision, 9 Geo. 4, c. 31, s. 22.) Rex v. Gordon, R. An indictment for bigamy, committed in one county, found by a jury of another where the prisoner was apprehended, must state that fact. Rex v. Fraser, 1 M. C. C. 407. But if an indictment for bigamy is tried at the same assizes at which the bill is found, it will sufficiently appear by the caption, that the party is in custody in the county, so as to give the court jurisdiction; and there need not, in that case, be any averment in the indictment as to the custody. Reg. v. Whiley, 1 C. & K. 150; 2 M. C. C. 186. See Reg. v. Smythies, 1 Den. C. C. 498; 2 C. & K. 878. An indictment was allowed to be amended as to the allegation of apprehension in the county. Reg. v. Smith, 1 F. & F. 36-Channell. 4. Indictment. The second wife being described as E. C., widow; she was, in fact, not a widow, nor had she ever been represented or reputed to be so:was formerly a fatal variance, but now amendable under 14 & 15 Vict. c. 100, s. 1. Rex v. Deeley, 4 C. & P. 579; 1 M. C. C. 303. If there was a discrepancy between the christian name of the prisoner's first wife as laid in the indictment and as stated in the copy of the certificate which was produced to prove the first marriage, the prisoner must be acquitted, unless that discrepancy could be explained, or in the absence of such proof, unless it could be shewn that the first wife was known by both names. Reg. v. Gooding, Čar. & M. 297-Maule. Where a prisoner, having been In an indictment, it is sufficient to apprehended for larceny, was de- aver the life of the first wife, withtained in the same county for big-out going on to allege that the maramy, the detainer was such an ap- riage is still subsisting. Murray v. prehension as would warrant the in- Reg. (in error), 7 Q. B. 700; 9 Jur. dicting him in that county, under 1 596; 14 L. J., Q. B. 357. 5. Evidence and Witnesses. Where a first marriage was solemnized under 6 & 7 Will. 4, c. 85, the certificate authorized by that act and 6 & 7 Will. 4, c. 86, s. 38, coupled with the identity of the parties, is sufficient primâ facie evidence of such marriage. Reg. v. Hawes, 1 Den. C. C. 270; 2 Cox, C. C. 432. It is not necessary to put the original register in evidence to prove a marriage. Sayer v. Glossop, 2 Exch. 409; 2 C. & K. 694; 12 Jur. 465-Parke. A photographic likeness of the first husband allowed to be shewn to the witnesses present at the first marriage, in order to prove his identity with the person mentioned in the marriage certificate. Reg. v. Tolson, 4 F. & F. 103-Willes. A prisoner's declarations, deliberately made, of a prior marriage in a foreign country, are sufficient evidence of such marriage, without proving it to have been celebrated according to the law of the country. Reg. v. Newton, 2 M. & Rob. 503; S. C., nom. Reg. v. Simmonsto, 1 C. & K. 164-Wightman. Semble, that an acknowledgment alone by the prisoner of the fact of the first marriage would not be sufficient evidence of that fact. Reg. v. Trueman, 1 East, P. C. 470. But proof of such an acknowledgment, together with evidence of cohabitation, and that the prisoner backed his assertion by producing to the witness a copy of a proceeding in a Scotch court, for having improperly contracted the marriage (but which was a nullity), will be sufficient evidence of the first marriage. Ib. There ought to be some proof of the first marriage, beyond the mere statement of the prisoner while in FISH. DIG.--5 custody; therefore, where a man went to a police station, and stated that he had committed bigamy, and when and where the first marriage took place, and while in custody signed a statement to the same effect, the judge thought this, though some evidence of the first marriage, was not sufficient, and so told the jury. Reg. v. Flaherty, 2 C. & K. 782-Pollock. On a trial for bigamy, a woman was called as a witness, who stated that she was present at a ceremony performed at a private house in Scotland by a minister of some religious denomination; that she herself was married in the same way, and that parties always married in Scotland in private houses :-Held, that she was not a competent witness to prove the law of Scotland as to marriage, and that her evidence did not prove the fact of a marriage. Reg. v. Povey, Dears. C. C. 32; 17 Jur. 120; 22 L. J., M. C. 19; 6 Cox, C. C. 83. A sentence of jactitation was not conclusive evidence against an indictment of bigamy; for its validity might be impeached as having been obtained by fraud. Duchess of Kingston's case, 1 Leach, C. C. 146; 1 East, P. C. 468. A reputed first wife cannot give evidence in favour of her supposed husband. Peat's case, 2 Lewin, C. C. 111-Alderson. Quære, whether a woman who has gone through the ceremony of marriage with a man can be allowed to prove the invalidity of the marriage, and that she is not his wife? Peat's case, 2 Lewin, C. C. 288. Semble, that she may be examined upon the voir dire. Ib.: S. P. Rex v. Wakefield, 2 Lewin, C. C. 279-Hullock. 1. Statutes, 66. 2. Breaking and Entering, 67. 4. By Lodgers, 69. 5. What is Night-time, 69. part of such dwelling-house for any of the purposes of the act, "unless there shall be a communi"cation between such building and "dwelling-house, either immediate 66 or by means of a covered and in"closed passage leading from the 6. What is a Dwelling-house, 69. one to the other." (Former pro 7. What is not a Dwelling-house, 71. 9. The Curtilage, 73. 12. Armed with Intent to break or enter, 15. Parties Indictable, 79. 17. Evidence and Trial, 81. 1. Statutes. vision, 7 & 8 Geo. 4, c. 29, s. 13.) By s. 54, "whosoever shall enter "any dwelling-house in the night "with intent to commit any felony [76.therein shall be guilty of felony, "and being convicted thereof shall "be liable, at the discretion of the "court, to be kept in penal servi "tude for any term not exceeding 66 seven years and not less than five years (27 & 28 Vict. c. 47), or to "be imprisoned for any term not exceeding two years, with or By 24 & 25 Vict. c. 96, s. 51," without hard labour, and with or "whosoever shall enter the dwell-" without solitary confinement.” "ing-house of another with intent By s. 55, "whosoever shall break "to commit any felony therein, or, "and enter any building, and com"being in such dwelling-house, shall" mit any felony therein, such build"commit any felony therein, and "ing being within the curtilage of "shall in either case break out of "a dwelling-house, and occupied "the said dwelling-house in the "therewith, but not being part night, shall be deemed guilty of "thereof, according to the provis"burglary." (Former provision, 7" ion herein before mentioned, or " & 8 Geo. 4, c. 29, s. 11.) +66 66 66 "being in any such building shall By s. 1, "the night shall be "commit any felony therein, and "deemed to commence at nine of "break out of the same, shall be "the clock in the evening of each "guilty of felony, and being conday, and to conclude at six of the "victed thereof shall be liable, at "clock in the morning of the next "the discretion of the court, to be "succeeding day. 'kept in penal servitude for any By s. 52, "whosoever shall be" term not exceeding fourteen years "convicted of the crime of burg- "and not less than five years (27 & lary shall be liable, at the dis-28 Vict. c. 47), or to be impris"cretion of the court, to be kept in" oned for any term not exceeding penal servitude for life, or for any two years, with or without hard term not less than five years (27 "labour, and with or without soli" & 28 Vict. c. 47), or to be im-"tary confinement." (Former proprisoned for any term not exceed- vision, 7 & 8 Geo. 4, c. 29, s. 14.) ing two years, with or without "hard labour, and with or without "solitary confinement." 66 66 66 66 By 7 & 8 Geo. 4, c. 27, 12 Anne, s. 1, was repealed, and so much of "18 Eliz. c. 7, as related to this "subject; and 24 & 25 Vict. c. "95, repeals 7 & 8 Geo. 4, c. 29, s. "11, and 7 Will. 4 & 1 Vict. c. "86." ally kept down by its own weight, is a sufficient breaking for the purpose of burglary. Rex v. Russell, 1 M. C. C. 377. 2. Breaking and Entering. There must be both a breaking and an entering to constitute a burglary, and the breaking must be such as will afford the burglar an A shutter-box partly projected opportunity of entering so as to from a house, and adjoined the side commit the intended felony. Rex of the shop window, which was v. Hughes, 1 Leach, C. C. 406; 2 projected by wooden panelling, East, P. C. 491. lined with iron :-Held, that the breaking and entering the shutterbox did not constitute burglary. Rex v. Paine, 7 C. & P. 135— Denman, Park, Bolland. If there is an aperture in a cellar window to admit light, through which a thief enters in the night, this is not burglary. Rex v. Lewis, 2 C. & P. 628-Vaughan. A. was charged with breaking Where a mill, under the same into the house of K. and stealing roof and within the same curtilage the goods of M. It was proved as as a dwelling-house, had a trap- to the breaking that the glass of door over a gateway, which was the window had been cut about a only fastened by a lid-door kept month before, but that every pordown by its own weight, without tion of the glass remained in its bolts or other interior fastenings:-place till he pushed it in, and stole Held, that an entry into the mill in the goods-Held, a sufficient breakthe night with intention to stealing. Reg. v. Bird, 9 C. & P. 44 flour by raising the lid-door amount--Bosanquet. ed to burglary. Rex v. Brown, 2 East, P. Č. 487; 2 Leach, C. C. 1016, n. Though a thief enters a dwelling-house at night through an open door or a window, yet if, when within, he breaks or opens an inner door with intent to commit felony, it is burglary. Rex v. Johnson, 2 East, P. Č. 488. Introducing the hand between the glass of an outer window and an inner shutter is a sufficient entry to constitute burglary. Rex v. Bailey, R. &.R. C. C. 341. It is not sufficient to constitute the offence of burglary, that there was an entry without a breaking of the outer door, and a breaking without an entry of an inner one. Reg. v. Davis, 6 Cox, C. C. 369. And it is a sufficient breaking to constitute such an offence, if the party breaks a pane of glass of a window, and puts his hand in for the purpose of opening the shutter, although he did not succeed in doing so. Rex v. Perkes, 1 C. & P. 300-Park. Lifting the flap of a cellar usu Where, in breaking a window in order to steal property in the house, the prisoner's finger went within the house :-Held, that there was a sufficient entry to constitute burglary. Rex v. Davis, R. & R. C. Č. 499. Throwing up a window, and introducing an instrument between such window and an inside shutter, to force open the shutter, if the hand or some part of it is not within the window, is not a sufficient entry to constitute burglary. Rex v. Rust, 1 M. C. C. 183. So where the prisoner raised a window which was not bolted, and thrust a crow-bar under the bottom of the shutter (which was about half a foot within the window), so as to make an indent on the inside of the shutter, but from the length of the bar his hand was not inside the house :-Held, that it was not a sufficient entry to constitute a burglary. Rex v. Roberts, Car. C. L. 293; 2 East, P. C. 487. Where a window opens upon hinges, and is fastened by a wedge, so that the pushing against it will |