CASES

DETERMINED BY THE

COURT FOR CROWN CASES RESERVED

IN

MICHAELMAS TERM, XXIX VICTORIA.

THE QUEEN v. JOHN CURGERWEN.

Bigamy-Absence during seven years.

Upon a trial for bigamy, when it is proved that the prisoner and his first wife have lived apart for the seven years preceding the second marriage, it is incumbent on the prosecution to shew that during that time he was aware of her existence; and, in the absence of such proof, the prisoner is entitled to be acquitted.

THE following case was stated by Willes, J.:—

The accused was tried before me at the last Cornwall Assizes for bigamy, when the question arose whether, when a husband and wife have lived apart for seven years, and he marries again, there being no evidence to shew his knowledge of the existence of his first wife (so to speak), he is liable to be convicted of bigamy, unless he can prove that, at the time of the second marriage, he did not know of his first wife being alive; in other words, whether the burden of proof of absence of such knowledge rests upon the prisoner, a question left undecided in Reg. v. Briggs. (1)

The prisoner was a man-of-war's man. The first marriage was to one Charlotte Curgerwen on the 1st day of September, 1852, at Buryan, in Cornwall. After the marriage the couple went to Ireland, where the prisoner was then in the Coast Guard service; and they lived together until June, 1853, when, in consequence of some disagreement, she left him, and returned to her father's house (1) Dears & Bell, C. C. 98; 26 L. J. (M. C.) 7.

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at Buryan. In January, 1854, the prisoner went to Portsmouth THE QUEEN to join a ship of war which was proceeding to the Baltic, and was CURGERWEN. afterwards engaged in the Russian war. Upon that occasion the first wife went to Portsmouth to see the prisoner off; and, after doing so, she, in or about March, 1854, returned to her father's house, where she remained without seeing or corresponding with her husband, or, so far as the evidence went, knowing whether he was dead or alive until shortly before the prosecution. There was no evidence that he had in the mean time ever been near where she lived, or had seen or heard of her or any member of her family, or known whether she was dead or alive. After the war, but at what precise time did not appear, the prisoner returned to England, and was again employed in the Coast Guard. On the 9th of July, 1862, the prisoner, being then at a Coast Guard station at a small place upon the coast of Devon, contracted the second marriage with one Eliza Hardy; and they lived together as man and wife undisturbed until this prosecution. A short time before the prosecution he was promoted, and sent to a station in Cornwall, about twenty miles from where his first wife was living. This led to the proceedings. It appears, therefore, that the prisoner and his first wife had been living apart for more than eight years at the time of the second marriage, and under circumstances in which it was at the least equally probable that he did not know, as that he did know, of his first wife being alive, if not, indeed, as I inclined to think, more probable that he did not know. A statement of the prisoner before the magistrates was put in; but, fairly construed, it amounted only to an admission of having been married twice, and of his then-that is, when before the magistrates-knowing that his first wife was alive.

Prideaux, for the prisoner, contended that there was no evidence upon which a conviction could properly take place, and that the burden of proving absence of knowledge was not upon the prisoner.

Knowing that the question of burden of proof in these cases was unsettled, I determined, in the event of a conviction, to reserve these objections; and I directed the jury, in substance, that the fact of the second marriage whilst the first wife was alive made a prima facie case, and that the burden was upon the prisoner to

bring himself within the exception in the statute; and, it being

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clear that the living apart for seven years was proved, they ought THE QUEEN to acquit him if they were satisfied that he did not know of his wife being alive within the seven years, and convict if the evidence did not so satisfy them.

The jury found the prisoner Guilty; and I let him out on bail, until the opinion of the Court for Crown Cases Reserved was taken upon the propriety of the conviction.

This case was considered on the 11th of November, 1865, by POLLOCK, C.B., WILLES, J., PIGOTT, B., and SHEE and MONTAGUE SMITH, JJ.

No counsel was instructed to argue on either side; but

Prideaux, amicus curia, referred the Court to Reg. v. Heaton, (1) where it was held by Wightman, J., that the burden of proof that a prisoner charged with bigamy has not been continually absent from his wife for seven years, and that she was known by him to be living within that time, is on the prosecution, on the ground that the prisoner cannot prove the negative. He also called the attention of the Court to Reg. v. Ellis, (2) in which Willes, J., said that, where the husband had been living apart from his wife for seven years, under such circumstances as to raise a probability that he supposed that she was dead when he re-married, it might be necessary on the part of the prosecution to offer evidence to shew that he knew that his first wife was alive.

POLLOCK, C.B. This question has arisen more than once. before; and we are now asked to settle the law on the subject. The term "burden of proof" is an inconvenient one, except when a person is called upon to prove an affirmative. Our attention has been called to a note by the editor of Russell on Crimes, (3) known as a gentleman of great learning, ability, and research, who appears to have adopted the view that the burden of proof lies on the prisoner. We think, however, that it is contrary to the general spirit of the English law that the prisoner should

(1) 3 Fost. & Fin. 819. (2) 1 Fost. & Fin. 309.

(3) Russell on Crimes and Misdemeanors, 4th edition, by Greaves, vol. 1, p. 270, note (1.)