Page:Federal Reporter, 1st Series, Volume 5.djvu/294

 282 FEDERAL REPORTEU. �have been compelled to amend the information by describing her as his wife. This would have settled the fact of mar- riage, perhaps conclusively, certainlyjonma/acJe,in her favor. On the other hand, if she were described as a single woman, or not described as married, which, I take it, is the same thing, and she ignores the defect and pleads not guilty, the prima facie presumption is that she is single; but if the fact be otherwise, she may prove it on the trial and under her plea of not guilty. The mistake made at the trial of thia case was in holding that this prinia facie presumption was conclu- sive against her because of her failure to plead in abatement. �The case of Rex v. Jones, Kel. 37, I have not been able to see, but is abstracted in 1 Euss. Cr. (8th Ed.) 24, and it there appears that it was a joint indiclment against Thomas Wharton and Jane Jones. The woman pleaded (how it does not appear) that she was married to Wharton, and would not plead to the name of Jones. The grand jury were called in, and the court, in their presence, amended the indictment by inserting the name of Jane Wharton, otherwise called Jones, not calling her the wife of Thomas Wharton, but giving her the addition of "spinster," upon which she pleaded. The court told her, however, that if she could prove that she was married to Wharton before the burglary she should havo the advantage of it, but she could not, and was convicted. In Quin's Case, 1 Lewin, C. C. 1, (which, also, I have not seen,) cited also by Eussell, it was ruled that if a woman be indicted as a single woman, and pleads to the felony, that is prima facie evidence that she is not afeme covert, but is not conclu- sive of the fact. 1 Euss. 2e. Judge Sharswood, in this edi- tion of Eussell, makes in his notes a quœre "whether the proper course for a woman so indicted is not to plead the wrong addition on arraignment, as by pleading to the felony she answers by the name (sic) by which she is indicted." �The authorities do not satisfactorily answer this quœre, as any one may see who examines them. Mr. Eussell states that if the woman pretends to be the man's wife the onus is on her to proye it; but where the indictment states the woman to be ����