Page images
PDF
EPUB

and the second in Detroit. The judge at the trial directed the jury that if prisoner was married to his first wife in Toronto and to his second in Detroit they should find him. guilty. Held, a misdirection, and that the jury should have been told, in addition, that before they found him guilty they ought to be satisfied of his being, at the time of his second marriage, a subject of Her Majesty resident in Canada, and that he had left Canada with intent to commit the offence. Held, also, that it was incumbent on the Crown to prove these facts. Quære, per Wilson, C.J., whether the trial should not have been declared a nullity: R. v. Pierce, 13 O. R. 226.

FEIGNED MARRIAGES.

277. Every one is guilty of an indictable offence and liable to seven years' imprisonment who procures a feigned or pretended marriage between himself and any woman, or who knowingly aids and assists in procuring such feigned or pretended marriage. R. S. C. c. 161, s. 2.

The punishment was two years by the repealed section. The alteration gives twelve challenges instead of four.

See s. 684, post, as to evidence on a prosecution under this enactment.

Under the repealed statute any offence under the corresponding section had to be prosecuted within a year: that limitation of time has not been re-enacted.

This offence was first created by 49 V. c. 52, s. 3. The male offender only is punishable.

*POLYGAMY.

278. Every one is guilty of an indictable offence and liable to imprison ment for five years, and to a fine of five hundred dollars, who—

(a) Practices, or, by the rights, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular, or by any form of contract, or by mere mutual consent, or by any other method whatsoever, and whether in a manner recognized by law as a binding form of marriage or not, agrees or consents to practise or enter into

(i) any form of polygamy ;

(ii) any kind of conjugal union with more than one person at the same time;

(iii) what among the persons commonly called Mormons is known as spiritual or plural marriage;

(iv) who lives, cohabits, or agrees or consents to live or cohabit, in any kind of conjugal union with a person who is married to another, or with a person who lives or cohabits with another or others in any kind of conjugal union; or

(b) Celebrates, is a party to, or assists in any such rite or ceremony which purports to make binding or to sanction any of the sexual relationships mentioned in paragraph (a) of this section; or

(c) Procures, enforces, enables, is a party to, or assists in the compliance with or carrying out of, any such form, rule or custom which so purports; or (d) Procures, enforces, enables, is a party to, or assists in the execution of, any such form of contract which so purports, or the giving of any such consent which so purports. 53 V. c. 37, s. 11.

As to evidence in trials for offences against this section: see s. 706, post.

See R. v. Labrie, M. L. R. 7 Q. B. 211, where it was held that mere cohabitation is not an offence punishable under this enactment. Also The People v. Mosher 2 Parker 195. In R. v. Liston, Toronto, April, 1893 (unreported), Armour, C.J., also held that adultery is not indictable under the above enactment.

SOLEMNIZATION OF MARRIAGE WITHOUT AUTHORITY.

279. Every one is guilty of an indictable offence and liable to a fine, or to two years' imprisonment, or to both, who

(a) Without lawful authority, the proof of which shall lie on him, solemn izes or pretends to solemnize any marriage; or

(b) Procures any person to solemnize any marriage knowing that such person is not lawfully authorized to solemnize such marriage, or knowingly aids or abets such person in performing such ceremony. R. S. C. c. 161, s. 1. 4 Geo. IV. c. 76, s. 21 (Imp.).

[ocr errors]

Limitation two years, s. 551. There was none under the repealed statute.

Indictment.

that A. B., on

at

without lawful authority, did unlawfully solemnize (or pretend to solemnize) a marriage between one C. D. and one

M. N.

See R. v. Ellis, 16 Cox, 469.

SOLEMNIZING A MARRIAGE CONTRARY TO LAW.

280. Every one is guilty of an indictable offence and liable to a fine, or to one year's imprisonment, who, being lawfully authorized, knowingly and

wilfully solemnizes any marriage in violation of the laws of the province in which the marriage is solemnized. R. S. C. c. 161, s. 3.

A limitation of two years has not been re-enacted.

Indictment.

that A. B., at

on

being

a clergyman of and lawfully authorized to marry, did unlawfully solemnize a marriage between one C. D., and one E. F., before proclamation of banns in violation of the laws of the Province of in which the said marriage was solemnized.

ABDUCTION.

281. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, with intent to marry or carnally know any woman, whether married or not, or with intent to cause any woman to be married to or carnally known by any other person, takes away or detains any woman of any age against her will. R. S. C. c. 162, s. 43 (Amended). 24-25 V. c. 100, 8.54 (Imp.).

The words in italics are new.

The words "by force" were inserted before "takes away" in the repealed clause; see notes under next section. Indictment.- unlawfully did take away (or detain) one A. B., against her will, with intent her, the said A. B., to marry (or ) (If the intent is doubtful, add a count stating it to be to" carnally know," or to cause her to be married to one N. S., or to some persons to the jurors unknown, or to cause her to be carnally, known by, etc.): 1 Burn, 12.

A verdict for assault or for an attempt to commit the offence charged, may be given, if the evidence warrants it: ss. 711, 713, post.

ABDUCTION.

282. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, with intent to marry or carnally know any woman, or with intent to cause any woman to be married or carnally known by any person

(a) from motives of lucre takes away or detains against her will any such woman of any age who has any interest, whether legal or equitable, present or future, absolute, conditional or contingent, in any real or personal estate, or who is a presumptive heiress or co-heiress or presumptive next of kin to any one having such interest; or

CRIM. LAW-19

(b) fraudulently allures, takes away or detains any such woman, being under the age of twenty-one years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, with intent to marry or carnally know her.

2. Every one convicted of any offence defined in this section is incapable of taking any estate or interest, legal or equitable, in any real or personal property of such woman, or in which she has any interest, or which comes to her as such heiress, co-heiress or next of kin; and if any such marriage takes place such property shall, upon such conviction, be settled in such manner as any court of competent jurisdiction, upon any information at the instance of the Attorney-General appoints. R. S. C. c. 162, s. 42. 24-25 V. c. 100, s. 53 (Imp.).

The words in italics in s-s. (b) are a repetition.

"Attorney-General" defined, s. 3.

On the trial of an indictment for an offence under s-s. (b) of this section, it is not necessary to prove that the accused knew that the girl he abducted had an interest in any property: R. v. Kaylor, 1 Dor. Q. B. R. 364.

It is not necessary that an actual marriage or defilement should take place. Under the first part of this section, the taking or detaining must be from motives of lucre and against the will of the woman, coupled with an intent to marry or carnally know her or cause her to be married or carnally known by any other person.

Indictment under (a).- from motives of lucre, did unlawfully take away and detain ("take away or detain") one A. N. against her will, she, the said A. N., then having a certain present and absolute interest in certain real estate (any interest, whether legal or equitable, present or future, absolute, conditional or contingent in any real or personal estate) with intent her, the said A. N., to marry (or carnally know her, or cause her to be married or carnally known by ). (Add a count stating generally the nature of some part of the property and, if the intent be doubtful, add counts varying the intent.) See another form, in 8 Chit.. C. L. 818.

Indictment under (b).

fraudulently allured (took

away or detained) one A. B., out of the possession and against the will of C. D., her father, she, the said A. B.,

then being under the age of twenty-one years, and having a certain present interest in with intent, her, the said A. B., to marry (or carnally know, or cause to be married or, etc., etc., etc.) (Add counts, if necessary, varying the statement as to the property, possession, or intents.)

Under the second part of the section the offence consists in the fraudulent allurement of a woman under twentyone out of the possession of or against the will of her parent or guardian, coupled with an intent to marry or carnally know her, or cause her to be married or carnally known by another person, but, for this offence, no motives of lucre are mentioned, nor should it have been committed against the will of the woman, though she must be an heiress, or such a woman as described in the first lines of this section.

The taking under the first part of this section must be against the will of the woman; but it would seem that, although it be with her will, yet, if that be obtained by fraud practised upon her, the case will be within the Act; for she cannot whilst under the influence of fraud be considered to be a free agent.

If the woman be taken away in the first instance with her own consent, but afterwards refuse to continue with the offender, the offence is complete, because if she so refuse, she may from that time as properly be said to be taken against her will as if she had never given her consent at all, for, till the force was put upon her, she was in her own power: 1 Burn, 8.

Moveover the detaining against her will is by itself an offence.

It seems, also, that it is not material whether a woman so taken contrary to her will at last consents thereto or not, for if she were in force at the time the offence is complete at the time of the taking, and the offender is not to escape from the provisions of the statute by having prevailed over the weakness of the woman by such means.

« PreviousContinue »