| Notes |
- Bendigo Advertiser, Wednesday 21 January 1885, page 2: Too Much Married.
A telegram from Maryborough in last night's Herald says that John Spark, a butcher, carrying on business in Nolan-street, was arrested on Monday night on a charge of bigamy. The information is laid by Catherine Spark, whose maiden name was Shomack. She is at present residing at Charlton, and she claims that she was married to the prisoner in November, 1859, at the Church of England, Creswick, by the Rev. Geo Pollard. Spark was at the time of his arrest living with a woman whose maiden name was Elizabeth Taylor, and he was married to her at Stawell in 1880. The prisoner admitted his guilt.
It appears that Spark and his first wife lived several years together, after marriage, until at length he was sent to gaol for a lengthened term for cattle stealing. On his release he found that his wife was living with his brother, and had several children by him. In consequence of this he refused to cohabit with her again. Mrs. Spark No. 1 took no proceedings until her brother-in-law turned her adrift, and, according to the prisoner, had broken an agreement between them by so doing.
Mount Alexander Mail, Wednesday 4 February 1885, page 2:
John Spark, of Maryborough, appeared on bail at the Stawell Police Court yesterday morning, charged with bigamy. Mr Buckley, of the Titles Office, proved the registration of the marriage of John Spark with Elizabeth [sic] Shomack, at Creswick, 1859, also of the marriage between John Spark and Elizabeth Taylor, at Stawell, in 1880. Dr Bennett, Acting Registrar, proved the marriage at Stawell, and Jane Beachley, the wife of a farmer at Buckranyule, and sister to the first wife, proved the marriage at Creswick. Mrs Adams, sister of the defendant, was put in the box, but could not recollect the marriage in 1859, she being then seventeen years. There were two children by the first marriage. Neither wife was examined. No. 2 is young, and not bad looking. No. 1 is in the Creswick Hospital. The prisoner was committed for trial at the Stawell Assizes on 12th May, bail being allowed. The court was crowded.
Argus, Wednesday 4 February 1885, page 7:
A CASE OF BIGAMY. (BY TELEGRAPH FROM OUR CORRESPONDENT.) STAWELL, MONDAY.
John Spark was charged at the local court to-day, before a bench of magistrates, with bigamy. The prisoner was undefended.
W. H. Buckley, clerk in the Titles office, Melbourne, produced a registration book, which set out that the defendant had been married at Creswick on November 14, 1859, to Catherine Shomack by the Rev. Geo. Pollard, the witnesses being John Mulberry and Jane Woods.
The witness produced a certificate from another registration book, dated 3rd January, 1880 of the marriage, at the acting registrar's office, Stawell, of John Spark and Elizabeth Taylor by Mr Arthur Bennett, acting registrar, the witnesses being Eliza Taylor and Alex. Boyd. Ann Adams, wife of Thos. Adams butcher, Clunes, stated that the accused was her brother. She did not recollect his marriage at Creswick. The accused and Catherine Shomack were living together as man and wife. Superintendent Baber, who conducted the prosecution, said that he had been misinformed as to this witness, who was to have proved the marriage. The witness said that she did not know anything about the marriage. Jane Beachly, residing near Charlton, recollected the marriage of the accused and Catherine Shomack perfectly well. She could not recollect the year, but she was present at Creswick, and saw the ceremony performed. It took place about 24 or 25 years ago. She was Catherine Shomack's sister.
Arthur Bennett gave evidence to the effect that he was acting registrar of marriages in January, 1880, at Stawell, and at that time celebrated the marriage between the accused and Elizabeth Taylor. The notice of the marriage, dated December 30, 1879 was signed by John Spark. He had no personal recollection of the witnesses. Alex Boyd and Eliza Taylor gave evidence as to signing a form as marriage witnesses on the 3rd January, 1880. Mrs Beachly, recalled, said that there were two children by the first marriage. The defendant, being cautioned, reserved his defence, and was committed to take his trial at the Stawell Assizes on May 12. Bail was allowed as before, himself in £100, and two sureties of £50 each.
Weekly Times, Saturday 16 May 1885, page 11; Conviction for Bigamy.
The Stawell assizes were held on Tuesday, before Judge Trench. There was only one case, that of John Spark, butcher and farmer, charged with bigamy. Evidence was given that, on 4th November, 1859, Sparks was married to Catherine Shoemack, at the Creswick parsonage, by the Rev. Mr. Pollard.
On 3rd January, 1880, Sparks married Elizabeth Taylor, a domestic servant at Stawell, at the registrar's office, and then stated in the declaration that he was a widower, his first wife dying in 1868. He lived with his first wife until apprehended and convicted for cattle-stealing. Ou going home, after his release, he found his wife living as a paramour to his brother. He went to Riverina, came back, kept an hotel in the same district, and had a family by Elizabeth Taylor, whom he subsequently married. Jane Beachley, sister to the first wife, was examined as to whether she knew, of her | own knowledge, that prisoner knew of his wife's existence for seven years prior to the second marriage. She would not swear this, but said the first wife had continuously resided in the Clunes district, and occasionally in the East Charlton district from her marriage to 1880. The first Mrs. Sparks was sixteen years old when she was married.
Mr. Gaunt, for the prisoner, contended that the whole burden of proof of knowledge by Sparks that his first wife was alive for seven years prior to the.second marriage lay with the Crown, and no probabilities of such knowledge, however strong, were sufficient to convict. The judge dissented, and thought that the present evidence was sufficient to go before the jury, but stated a case for the Banco Court on the point. The prisoner was convicted, and sentenced to six months' hard labour. His sentence was respited until the reserved case was determined, and bail was allowed.
Argus, Friday 14 August 1885, page 7.
BANCO COURT.* TUESDAY AUGUST 13 (Before their Honours Mr Justice Higinbotham Mr Justice Holroyd, and Mr Justice Cope).
THE QUEEN V. JOHN SPARK
This was a special case reserved by Judge Trench at the trial of John Spark on a charge of bigamy. The prisoner was tried at the Stawell Assize Court. It was proved that on the 4th November 1859, at Creswick, the prisoner was married to Catherine Shoemack, by the Rev. George Pollard, according to the ceremonies of the Church of England; that on the 3rd January, 1880, at the registry office, borough of Stawell, the prisoner was married to one Elizabeth Taylor, by Arthur Bennett, the then registrar of marriages, who produced the record of the marriage, and stated in evidence that he received the description in the certificate - "John Spark, widower, farmer; wife died 1868" -from the prisoner himself, and that his signature waa thereunto subscribed.
Mrs. Jane Beachley stated in evidence that she was a sister of Mrs. Spark, that Mrs. Spark was then outside the court; that after their marriage prisoner and his wife lived in the district, at Ascot, until he was arrested for cattle-stealing, and was sentenced to five years imprisonment; and that when he had done his sentence he came back but left again; and that Mrs. Spark remained in the same district, and never moved.
After other witnesses had given evidence the case for the Crown closed. Mr. Gaunt, the prisoner's counsel, then submitted that the prisoner was entitled to be discharged, on the ground that there was no evidence that the prisoner knew of his wife's existence during any time between 1873 and 1880; that there was no proof positive adduced by the Crown of prisoner's knowledge of his wife's existence at the time he contracted the second marriage; and that evidence that merely goes to raise probabilities, however strong, is not sufficient to justify a conviction in a prosecution for bigamy.
Judge Trench considered that the prisoner assumed to know that his wife was dead, and, for the purpose of effecting the second marriage, declared that he was a widower, and that his first wife had died in 1868, whereas she was still living and resident in the same district, and, in fact had never moved from the place where he left her; and there was not the slightest difficulty and none even suggested, of ascertaining the existence of his wife if the prisoner had chosen to inquire at all before contract-ing the second marriage. There was no pretence set up in justification of the prisoner' s declaration that his wife had died in 1868.
Judge Trench considered that there was evidence to go to the jury in support of the charge against the prisoner. The jury convicted the prisoner, but the question was reserved for the Full Court as to whether there was any evidence against him that he knew of his wife's existence between the years 1873 and 1880. Mr. J. T. T. Smith appeared for the Crown. There was no appearance for the prisoner.
Mr Justice Higinbotham said that it was contended for the prisoner that where married persons were absent from each other for seven years, the burden of proof in a prosecution for bigamy rested with the prosecution to show that the prisoner did not come within the proviso of section 54 of the Criminal Law and Practice Act. That proviso was that nothing in the section "shall ex-tend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time.'" But assuming that the proviso did apply to this case, there was evidence to go to the jury that at the time the defendant entered into the second marriage he was aware that his first wife was then alive. When he was married on the second occasion, he made a declaration that he was a widower, and that his first wife had died in 1868. It was not true that his wife had died at that time. The fact that the prisoner had made a solemn declaration about the death of his first wife, which was untrue in fact, afforded some evidence that he knew it to be untrue. The fact that it was untrue afforded some evidence of knowledge on his part that his first wife was then living. The conviction would therefore be affirmed.
Mr Justice Holroyd concurred and said that the provision in the section did not protect a husband who went away from his wife or a wife who went away from her husband. It applies only to the person who remained in the locality where both had been previously living. Otherwise, if a man wished to marry again, he need only leave his wife, go to a distant part of the kingdom, remain away for seven years, say that he had not heard of his wife within that time, and then claim to be entitled to marry again. Mr Justice COPE concurred. Conviction affirmed.
* A session in a court in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller panel of judges.
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AIGS/FHC Member's - Family Trees
Abt 1838 - 1917 (~ 79 years)