copy of it be produced.(g) By the revised statutes, the original marriage certificate, the original entry thereof made as therein directed, or a copy of such certificate or entry duly certified, shall be received in all courts and places as presumptive evidence of the marriage. (h) The usual evidence is a copy of the register, with proof of the identity of the parties. But the marriage may be proved by a person who was present at the ceremony and can speak to the identity of the parties.(i) The mere confession of the party is not sufficient evidence of the first marriage; but there must be proof of a marriage in fact.(k) And proof of cohabitation as husband and wife will not be sufficient evidence of a marriage.(1) Incest.] By the revised statutes marriages between parents and children, including grand parents and grand children of every degree, ascending and descending, and between brothers and sisters of the half, as well as of the whole blood, are declared to be incestuous and absolutely void. And this extends to illegitimate as well as legitimate children and relatives.(m) Persons within the above mentioned degrees of consanguinity who shall intermarry with each other, or who shall commit adultery or fornication with each other, shall, upon conviction, be punished by imprisonment in a state prison for a term not exceeding ten years.(n) 3. OFFENCES AGAINST PUBLIC DECENCY; MALICIOUS MISCHIEF; COM. POUNDING OR CONCEALING OFFENCES; CRIME AGAINST NATURE. Offences against public decency.] The offence of violating the sepulchres of the dead is severely punished by statutes enacted for that purpose in most of the states, and indeed in nearly every civilized country. And in those states where there is no statute provision, this offence is punishable at common law. (o) Taking up dead bodies, though for the purposes of dissection, is a misdemeanor indictable at common law. (p) And it is an indictable offence against decency to take a person's dead body with intent to sell and dispose of it for gain and profit.(g) To sell the dead body of a capital convict for dissection, where dissection is no part of the sentence, is a misdemeanor at common law. (r) If the grave clothes or coffin be stolen, an indictment for felony is sustainable, lay (g) 1 Russ. on Cr. 206. (k) 7 John. 314. But see 3 Chit. Cr. L. 720, note A. (1) 1 Phillim. Rep. 288. Arch. Cr. Pl. (m) 2 R. S. 139, § 2. (0) See 2 Chit. Cr. L. 35, note A. ing the property in the legal representatives of the deceased.(s) To cast a dead body into a river, without the rites of christian sepulture, is also indictable. (t) So of a conspiracy to prevent its interment ;(u) or by threats and menaces to hinder a clerk from reading the order for the burial of the dead, and interring a corpse. (v) It is also a misdemeanor to arrest a dead body on a civil process for debt, and thereby prevent a burial in due time. (w) The provisions of the revised statutes on this subject are as follows: Every person who shall remove the dead body of any human being from the grave or other place of interment, for the purpose of selling the same, or for the purpose of dissection, or from mere wantonness, shall, upon conviction, be punished by imprisonment in a state prison not more than five years, or in a county jail not more than one year, or by a fine not exceeding $500, or by both such fine and imprisonment. Every person purchasing or receiving such dead body, knowing it to have been unlawfully disinterred, is subject to the same punishment as the person removing it. Every person who shall open a grave or other place of interment, with intent, 1. To remove the dead body of any human being, for the purpose of selling the same, or for the purpose of dissection; or 2. To steal the coffin or any part thereof, or the vestments or other articles interred with any dead body, may be imprisoned in a state prison not exceeding two years, or in a county jail not more than six months, or fined not more than $250, or receive both such fine and imprisonment. (x) Malicious mischief.] Under this head we shall only notice the offence of poisoning cattle, &c. We shall hereafter, under the head of misdemeanors, have occasion to speak of other kinds of malicious mischief, such as cruelty to animals, destroying trees, &c. The statute provides that every person who shall wilfully administer any poison to any horse, cattle or sheep, or shall maliciously expose any poisonous substance, with intent that the same should be taken or swallowed by any horse, cattle or sheep, shall, upon conviction, be punished by imprisonment in a state prison not exceeding three years, or in a county jail not more than one year, or by a fine not exceeding $250, or by both such fine and imprisonment.(y) Compounding or concealing felonies.] The offence of compounding a felony is defined by the ancient writers, to be where the party robbed not (s) 2 East's P. C. 652. 1 Hale, 575. (t) 1 Greenl. R. 226. (u) 2 T. R. 733. (v) 7 Dow. & R. 461. (w) 2 Chit. Cr. L. 35, note B. 1 Russ. on Cr. 416, note A. (x) 2 R. S. 688. (y) 2 id. 689, § 16. only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute.(z) Previous to the revised statutes this offence was punishable only as a misdemeanor, unless accompanied with some degree of maintenance given to the felon which made the party an accessary after the fact. By the revised statutes the offence is raised to the degree of felony. The merely taking one's goods again is no offence, unless favor be shown to the thief. (a) Of a similar nature to this offence of compounding of felony, is that of misprison of felony; by which is understood the concealment of felony, or a procuring such concealment, whether it be felony by the common law or by statute. (b) Thus, silently to observe the commission of a felony, without using any endeavor to apprehend the offender, is misprison; (c) for a man is bound to discover the crime of another to a magistrate with all possible expedition. (d) But there must be knowledge merely, without any assent; for if a man assent to a felony he will be either principal or accessary.(e) In general, it may be observed that any contract or security made in consideration of dropping a criminal prosecution, suppressing evidence, soliciting a pardon, or compounding any public offence, without leave of the court, is invalid. (ƒ) Our statute has the following provisions respecting these offences: Every person having a knowledge of the actual commission of any of fence punishable by death, or by imprisonment in a state prison for life, who shall take any money, or property of another, or any gratuity or reward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound or conceal any such crime, or to abstain from the prosecution therefor, or to withhold any evidence thereof, shall, upon conviction, be punished by imprisonment in a state prison not exceeding five years, or in a county jail not exceeding one year.(g) And concealing or compounding felonies punishable by imprisonment in a state prison for any other term than for life, may be punished by imprisonment in a state prison not exceeding three years, or in a county jail not exceeding six months.(h) Upon the trial of any indictment for any offence above specified, it is (z) 1 Hawk. c. 59, s 5. 4 Black Com. 133. (a) Crown Cir. Comp. 137. (b) 1 Hawk. c. 59, s. 2. 1 Russ. on Cr. 135. (c) 1 Hale, 374. 1 Ruse. on Cr. 135. (d) 3 Inst. 140. (e) 4 Black. Com. 121. not necessary to prove the conviction of any offender for the offence in relation to which any agreement or understanding above prohibited shall have been made.(i) And upon an indictment for compounding a felony and agreeing to withhold evidence, the defendant cannot plead or prove the acquittal of the person charged with the felony, in bar of his own conviction.(k) Concealing and compounding misdemeanors will be noticed in another place. Crime against nature.] The offence against nature, or as it is sometimes termed, sodomy or buggery, consists in a carnal knowledge committed against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with beast.(m) With respect to the carnal knowledge necessary to constitute this offence, as it is the same that is required in the case of rape, it will be sufficient to refer to that part of this work relating to that offence.(n) By the revised statutes, every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with a beast, shall be punished by imprisonment in a state prison for a term not more than ten years.(0) To constitute this offence, the act must be in that part where sodomy is usually committed. The act in a child's mouth does not make the offence. (p) Those who are present aiding and abetting in this offence are all principals; but if the party on whom the offence is committed be within the age of discretion, viz. under fourteen, it is not felony in him, but only in the agent.(g) When strictly and impartially proved, this crime well merits strict and impartial punishment. But it is, from its nature, so easily charged, and the negative so difficult to be proved, that the accusation ought clearly to be made out. The evidence should be plain and satisfactory, in proportion as the crime is detestable. (r) In cases where it is not probable that all the circumstances necessary to constitute this crime will be proved, it may be advisable only to prefer an indictment for an assault, with intent to commit an unnatural (i) Id. ib. § 19. (k) 13 Wend. 592. (m) 1 Russ. on Cr. 567. (n) Ante, p. 66. (0) 2 R. S. 689, § 20. (p) 1 Russ. on Cr. 567. 3 Inst. 59. 1 Russ. on crime. And it should be observed, that the mere soliciting another to the commission of this crime has been treated as an indictable offence.(s) Evidence.] The evidence in this case is the same as in that of rape; (see ante, p. 68;) excepting that it is not necessary to prove that it was committed against the consent of the person on whom it was perpetrated; and both agent and patient, if consenting, are equally guilty.(t) An admission by the prisoner that he had committed such an offence at another time and with another person, and that he had a tendency towards such practices, ought not to be received in evidence on an indictment for this offence. (u) (s) 1 Russ. on Cr. 568. 2 Chit. Cr. L. 50. (t) 3 Inst. 59. 1 Hale, 670. |