1872 existence of the first. But it is plain that those who so read the THE QUEEN Statute are introducing into it words which are not to be found in 1. ALLEN. it, and are obviously departing from the sense in which the term "being married" must be construed in the earlier part of the sentence. But when once it becomes necessary to seek the meaning of a term occurring in a statute, the true rule of construction appears to us to be, not to limit the latitude of departure so as to adhere to the nearest possible approximation to the ordinary meaning of the term, or to the sense in which it may have been used before, but to look to the purpose of the enactment, the mischief to be prevented, and the remedy which the legislature intended to apply. Now, we cannot agree either with Fitzgerald, B., in his judgment in Reg. v. Fanning (1), that the purpose of the statutes against bigamy was simply to make polygamous marriages penal, and that, consequently, it was only intended to constitute the offence of bigamy where the second marriage would, but for the existence of the first, be a valid one; or with those judges who, in Reg. v. Fanning (1), found their judgments on the assumption that, in applying the statute against bigamy, the second marriage must be one which, but for the first, would be binding. Polygamy, in the sense of having two wives or two husbands, at one and the same time, for the purpose of cohabitation, is a thing altogether foreign to our ideas, and which may be said to be practically unknown; while bigamy, in the modern acceptation of the term, namely, that of a second marriage consequent on an abandonment of the first while the latter still subsists, is unfortunately of too frequent occurrence. It takes place, as we all know, more frequently where one of the married parties has deserted the other; sometimes where both have voluntarily separated. It is always resorted to by one of the parties in fraud of the law; sometimes by both, in order to give the colour and pretence of marriage where the reality does not exist. Too often it is resorted to for the purpose of villainous fraud. The ground on which such a marriage is very properly made penal is, that it involves an outrage on public decency and morals, and creates a public scandal by the prostitution of a solemn ceremony, which the law allows to be applied only to a legitimate union, to a marriage (1) 17 Ir. C. L. 289; 10 Cox, Cr. C. 411. 1872 v. ALLEN. at best but colourable and fictitious, and which may be made, and too often is made, the means of the most cruel and wicked de- THE QUEEN ception. It is obvious that the outrage and scandal involved in such a proceeding will not be less, because the parties to the second marriage may be under some special incapacity to contract marriage. The deception will not be the less atrocious, because the one party may have induced the other to go through a form of marriage known to be generally binding, but inapplicable to their particular case. Is the scandal or the villany the less because the man, having represented to the woman, who is his dupe, and to the priest, that he is a Roman Catholic, turns out afterwards to be a Protestant? Such instances as those we have referred to, thus involving public scandal or deception, being plainly within the mischief which we may reasonably assume it must have been the purpose of the legislature to prevent, we are of opinion that we ought not to frustrate the operation of a very salutary statute, by putting so narrow a construction on it as would exclude such a case as the present, if the words are legitimately capable of such a construction as would embrace it. Now the words "shall marry another person" may well be taken to mean shall "go through the form and ceremony of marriage with another person." The words are fully capable of being so construed, without being forced or strained; and as a narrower construction would have the effect of leaving a portion of the mischief untouched, which it must have been the intention of the legislature to provide against, and thereby, as is fully admitted by those who contend for it, of bringing a grave reproach on the law, we think we are warranted in inferring that the words were used in the sense we have referred to, and that we shall best give effect to the legislative intention by holding such a case as the present to be within their meaning. To assume that the words must have such a construction as would exclude it, because the second marriage must be one which, but for the bigamy, would have been as binding as the first, appears to us to be begging the entire question, and to be running directly counter to the wholesome canon of construction, which prescribes that, where the language will admit of it, a statutory enactment shall be so construed as to make the remedy co-extensive with the mischief it is intended to prevent. 1872 v. ALLEN. In thus holding it is not at all necessary to say that forms of THE QUEEN marriage unknown to the law, as was the case in Burt v. Burt (1), would suffice to bring a case within the operation of the statute. We must not be understood to mean that every fantastic form of marriage to which parties might think proper to resort, or that a marriage ceremony performed by an unauthorized person, or in an unauthorized place, would be a marrying within the meaning of the 57th section of 24 & 25 Vict. c. 100. It will be time enough to deal with a case of this description when it arises. It is sufficient for the present purpose to hold, as we do, that where a person already bound by an existing marriage goes through a form of marriage known to and recognized by the law as capable of producing a valid marriage, for the purpose of a pretended and fictitious marriage, the case is not the less within the statute by reason of any special circumstances, which, independently of the bigamous character of the marriage, may constitute a legal disability in the particular parties, or make the form of marriage resorted to specially inapplicable to their individual case. After giving the case of Reg. v. Fanning (2) our best consideration, we are unanimous in holding that the conviction in the case before us was right, and that the verdict must stand good. Conviction affirmed. Attorneys for prosecution: Lamb & Son, Andover. (1) 2 Sw. & Tr. 88; 29 L. J. (P. M. (2) 17 Ir. C. L. 289; 10 Cox, Cr. C. 411. THE QUEEN v. JAMES THOMPSON, WILLIAM DANZEY, and Evidence-Competence-Joint Indictment and Trial-Wife of One Prisoner Where two prisoners are indicted and tried together, the wife of one is not a competent witness for the other. CASE stated by the chairman of quarter sessions for the county of Essex. This was a joint indictment, tried at the Easter quarter sessions for the county of Essex, against Thompson and Danzey, for stealing fifty-six pounds of onions, the property of their master, and against Hide for receiving the same, knowing them to be stolen. The charge was that the two first, being sent with two carts of vegetables to Covent Garden, stopped on the road at Hide's house, and there disposed to him of this bag of onions, stolen by the two conjointly from one of the carts. The prisoners did not ask to be tried separately, but the two first retained one counsel and Hide retained another. The case depended mainly on what had been done and said at the door of Hide's house, and in his kitchen, by Thompson, Danzey, Hide, and his wife Elizabeth, and a maid servant Eliza, sister of the prisoner Thompson. After the speech of the counsel for Thompson and Danzey, he tendered as a witness for his clients Elizabeth, the wife of the prisoner Hide. This was objected to by counsel for the prosecution, on the ground that her evidence must directly affect the case against her husband, inasmuch as the acquittal of the two would necessarily entail the acquittal of Hide, and, moreover, that anything tending to strengthen or weaken the evidence against them must have a similar effect on the evidence as regarded Hide. The following cases were referred to:-Reg. v. Smith (1); Reg. v. Moore (2); Reg. v. Bartlett (3); Reg. v. Deeley (4); Reg. v. Payne. (5) (1) 1 Moo. C. C. 289. (2) 1 Cox, Cr. C. 59. (3) 1 Cox, Cr. C. 105. 1872 June 1. 1872 THE QUEEN V. THOMPSON. Under these circumstances, and considering the general policy of the law as rejecting the evidence of a wife for or against her husband in criminal cases, the Court refused to admit the evidence of the wife, subject to a case to be submitted to the Court for Crown Cases Reserved. Thompson and Danzey were convicted and Hide was acquitted. BOVILL, C.J. We have considered the point in this case reserved for our decision, and we are of opinion that the wife of any one of the three prisoners stands in the same position with respect to the admissibility of her evidence as her husband. The three prisoners were all indicted in one indictment, though there were counts charging different offences; and being indicted together, and tried together, and in charge of the jury, one of them could not be called as a witness for the others. This was so decided in Reg. v. Payne (1) in January last. And as the wife stands in the same position as the husband, the present case cannot be distinguished from that. BYLES, BLACKBURN, and MELLOR, JJ., and BRAMWELL, B., concurred. June 8. Conviction affirmed. THE QUEEN v. HENRY MARTIN AND WILLIAM WEBB. View-Mistrial-Evidence heard by Jury out of Court-Practice-Jurisdiction. It is no irregularity to allow the jury to have a view of premises after the judge has summed up the case. Where it is alleged that the jury have received evidence in the absence of the judge and of the prisoners, it is for the Court, before which the trial takes place, to investigate the facts, and ascertain whether the alleged irregularity has occurred. Quære, whether, if such irregularity be so found to have occurred, this Court has jurisdiction to order a venire de novo, as for a mistrial. CASE stated by the Deputy-Assistant Judge for the Middlesex Sessions, (1) Ante, p. 349. |