State v. . Norman

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 *227 an 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.