June, 1829.

#### The State v. Thomas Norman.

From Guilford.

An indictment on a statute need not negative a proviso which merely witlidi- ws a case from its operation ; aliter Where the proviso adds a qua’ification to the enactment so as to bring a case within it, which but for the proviso would be without the statute. Therefore an indictment on the statute of 1790 against bigamy, which avers that the first wife was Jiving at the time of the second marriage, is good, without an averment that the first marriage then subsisted.

The Prisoner was tried on the last circuit before ids honor Judge. Martin, on the following indictment:

“The furors &c. on their oath present, that T. iK late of &c. on &c. in &c. did marry one JU. B. spinster, and tier the said JH. B. then and there had for his wife, ai d that the said T. N, afterwards, to-wit.on &c. v ilh force and arms, in &c. feloniously did marry and take to ■wife one P. S. spinster, and to her the said P. S. then and there was married, the said M. B. Iris former wife being then alive, and in full life in &c. Against the form of the acts of the General Assembly in such case made and provided; and against the peace and dignity of the State.”

After a verdict for the State, the Counsel for the prisoner moved in arrest of judgment, which motion being sustained by bis Honor, Mr. Solicitor-General Scott prayed an appeal to this Court.

The form in which the record of the cause was certified, constituted an objection in tin's Court. After setting forth the names of the jurors, the words of the transcript were, “ who being sworn, charged and empanelled “true deliverance to make between tin* State and the “ prisoner at the bar, Thomas Norman, and having heard “their evidence, both of Jaw and the fact, the Couusd “ for the State and the prisoner, and also the charge of “the CourC returned ¡o the Court (in manner arid form “as the r«..«t"m b) their verdict guilty, when the Court “recorded the verdict in toe words following, to-wit;

*223*» Find fue Defendant Thomas Norman, guilty of the fe- “ lony and bigamy, and of taking to himself a second 4< wife, bis former wife being still living, as charged in “ the bill of indictment, and that the second marriage “ was after the first day of April, ! 828, but before the ■“ finding of the bill of indictment.”

The dates set forth in the record were also in figures, and not in letters, as is usual in records.*

The Attorney General, for the State.

The indictment charges that the Defendant, on the 15th day of September, 1819, married one Mary Baker; that afterwards, on the 1st day of April, 1838, lie married Peggy Silla-ner, his first wife being then alive. The presiding Judge considers this indictment as insufficient, and arrests the *224judgment, upon the ground, as I suppose, that from (he face of the indictment, more, than seven years liad elapsed between the first and second marriage, and that it is not charged that the Defendant knew his first wife to he living within that time. It will be found that it is not necessaiy that it should be so charged. By our act of Assembly i 790, (llcv. c. 323) it is declared, that any person being married, who shall take to him or herself a second husband or wife whilst the former is .alive, shall be guiby of a felony. The proviso to this act is first, where the husband or wife shall remain beyond seas for seven years ; secondly*, where the one sha// absent him or herself for seven years, without the fact of being alive being known to the other at the second marriage.

It is a plain and general rule in civil pleading, that; Mistier which six,old come more properly from the oilier side, need not he stated. As in pleading opon statutes, where there is an exception in the enacting clause, the Plaintiff must show that the Defendant is not within Ihe exception ; but if there is an exception in a subsequent clause, that is a matter of defence, and the, party must show if, to exempt himself from the penally. (1 Chitty’s Civil Pleading, 228). This rule operates also in criminal pleading. (Biarkie’s Crim. Pleading, 188). If a prima fade illegality be shewn, the indictment will he sufficient, as it is unnecessary to negative any excuse op justification, the affirmative of which would be an.answer to the charge. In the case of Hex v, Jarvis (1 East 645) whirl) was a conviction on the game laws, Lord Mansfield observes, “ it is a known distinction, that whui comes by way of proviso in a statute, must be insisted on. by way of defence, by the party accused; but where exceptions are in the enacting part of a law, it must, in the indictment, charge that the Defendant is not within any of them.'’ The same rule with respect to prrvisos and exceptions, is clearly laid down by Lord Hale, (yol. 2, li'O). Again, our act of 1790, is nearly *225a copy of the statute of 1 James I, c. 11, iu which are to be found the same provisions ; and it. will be found that the forms in Chitly, Archbold and Starkie, correspond with this indictment — none of them negativing the exception of the husband or wife knowing of the other party’s being alive, at the lime of tiie second marriage. — - Archbold, iu giving what the Defendant may prove in defence, states this proviso of absenting him or herself for the space of seven years, the one not knowing the other to be living at the time. (Jlrclibold+359).

Winston, for the Prisoner, contended,

1. That the paper certified to this Court as the transcript of the record, was nothing more than an historical narration of the facts which took place in the Court below, which did not enable this Court to pronounce sentence. For tills lie cited Wilcox v. Ray (1 Haywood 410).

2. That the formal and proper manner of setting forth the act of a Court was in the present 'ease — whereas the transcript sent u¡> was in the preterpeHVct.' For which was cited, 9 Finer "• 74. Rex v Lawrence (8 Serg. & Low i 96) —Ventris v. Carter, fFdv. I SO). Robins v, Sanders, fGro, J. 386).

3. That the dates set forth in the transcript were given in figures, when it was proper to give them in words. ■ (2 Hawkins 310. see. 127),

4. H-- contended that the Judge below was right in arresting the judgment, because it was not averred in. the indictment, that the. first marriage was valid and sub fisting at the time of the second. He admitted that an indictment need not negative a proviso contained in a statute upon which it was framed; but he contended that the rale, was different where the proviso modifies the enacting clause, and makes the offence described in- it essentially different from that described in the whole statute. He. contended that the essence of the offence consisted in the fact, that the prisoner had contracted a sc-*226corn! marriage while tiie first subsisted — nut while the, first wife was alive, and of consequence, that the exist* ■ % ence of the first might, to be averred. For this was cited j%ex v# Sparling (1 Sira. 497). Rex v. Jarvis (Biirn 148). 1 Hawks 22. Rex v. Wheal man (Bong. 345).— And that the precedents of indictments for Bigamy were in accordance. (Duchess of Kingston's case 3 Chitty, c. 2. Jlrclibold's Grim. Pleading 357).

*

Act ot 1790.

1. If any person now married, .or who hereafter shall be married, doth take to him or herself another husband or wife, while his or her former wife or husband is still alive, every such offence shall be felony, and the person so offending shall suffer death as in cases of felony. Provided always, That this act shall not extend to any person or persons whose husband or wife shall continually remain beyond sea for the space of seven years together, nor to any person or persons whose husband or wife shall absent him or herself in any other manner for the space of seven years together, such person not know-" ing his or her said husband or wife to be living within that time.

2. This act shall not extend to any person or persons, who are or shall be at the time of sued iftoi-marriage divorced according to the mode estiblished, or which hereafter shall be established by law, nor to any pel son or persons wli .se former marriage is declared by law to be void and of no effect, nor to any p., rson or persons for or by reason of any former marriage had or made within the age of consent.

Am of 1809.

An act to amend the first- section of an act passed at Fayetteville, in the year one thousand seven hundred and ninety, entitled “ An act ' to restrain all martii d p.vsons from manying again whilst their former wives or former husbands are living ”

1. If any person now married, or who hereafter shall be married, doth take to him or herself another husband or wife, while Iris or her former wife or husband is still living, every such offender shall be adjudged a felon, without benefit of clergy, and shall suffer death;

Henderson Chief-Justice.

We find in the acts of our Legislature, two kinds of provisoes — the one in the nature of an exception, which withdraws the case provided for from the operation of tiie act, the other adding a qualification, whereby a case is brought within that operation. Where the proviso is of the first kind, it is not necessary in an indictment, or other charge founded upon the act, to negative tiie proviso ; but if the case is within the proviso, it is left to the Defendant to show that fact, by way of defence. But in a prov iso of the latter description, the indictment must bring the case within the proviso. For in reality, that which is provided for, in wdiat is called a proviso to tiie art, is part of the enactment itself, if this rase is tested by these rules, it will be found that tiie proviso, whiph exempts from the operation of tiie act persons who have been divorced, is one of the first class. It withdraws such a case from the operation of the act. if therefore, it be the fact, that the Defendant had been divorced from his first wife, it lay on him to show it as a defence. All the precedents produced are so, except that in tiie Duchess of Kingston's case. The form of the indictment in that case was, Í presume, settled by Lord Tiuirlow, and it being a case of great excitement, I suppose the averment that.she had not been divorced from her former husband, was made from great caution.

Although the act of 1809 contains no proviso, and is in itself a complete enactment on the subject, yetas it is *227an amendment to, and explanatory of the act of 1790, and was designed only to oast the offender of his clergy. , I have considered this case, as if every proviso contained in the first act was incorporated in that of 1809, for such I believe to be its just exposition,

The exception, that the dates are in figures, not written, nor in Roman numerals, has been, I believe, disallowed in the old Supreme Court, more than once.

It is objected, that the transcript sent up from the Superior Court, is a mere certificate of what was done, and not a copy of the record. It is somewhat of that character, but a sufficiency appears as a copy, to warrant a judgment for the State.

Per Curiam. — Judgment reversed. The Court below will proceed to judgment of death.