The Sun. — 1859-11-21 (London, England)

THE CASE OF DR. SMETHURST.  A very great deal of interest appears to prevail in the public mind with reference to 'what is likely to be the ultimate fate of this prisoner, and the sentence that is likely to be passed in th 3 event of his being convicted of the offence of bigamy, for which he stands committed to take his trial, at the ensuing session of the Central Criminal Court. It may be as well to state that the punishment for this offence has been very much changed by recent !therations that have been made in the law ; but it is looked upon as an offence of such a peculiar class, and one which varies so greatly in its circumstances, that a very large discretion is vested in the Court before which a prisoner may be tried as to the punishment. Before the abolition of the punishment of transportation, a prisoner convicted of bigamy was liable to be transported for seven years, or to be imprisoned, with or without hard labour, at the discretion of the Court for " any period" not exceeding two years. When the punishment of transportation was abolished, the statute substituted the maximum period of four years' penal servitude in lieu of the extreme sentence of transportation, and continued the same power as to imprisonment. But this was again altered by a statute passed in the 20th and 21st of the reign of her present Ma, jesty, which gives the Court power to order a piaBoner convicted of the offence of bigamy to be kept in penal servitude for any period not exceeding seven nor less than three years, or imprisonment not exceeding two years, and either with or without hard labour, as the Court shall think fit. It is scarcely necessary to inform the public that the first wife can be no party, at least so far as giving evidence, to the prosecution, the law not permitting a wife to give evidence either in favour or against her husband except in cases of personal injury, and it is obvious that the person really injured by the act, is the second wife, or rather the woman with whom the illegal marriage is performed, and in all such cases the punishment awarded to the prisoner depends a great deal whether any deception or fraud has been practised upon the second wife, and where there is no evidence of this the sentence generally passed rarely exceeds four, or, at the most, six months' imprisonment. In such a case as that of Dr. Smethurst therefore, where the first marriage took place 30 years before, and with a woman nearly as many years older than himself, and where the second wife was perfectly aware that he was a married man at the time she went through the ceremony,or, at all events, might very easily have made inquiries and satisfied herself upon the subject if she had been minded to do so, and when there did not appear to be any suspicion of Jraud or misrepresentation, according to the usual practice of the Court a very light sentence would have been inflicted, probably not more than three months' imprisonment. The prisoner has now been more than six months in prison, which is certainly a heavier punishment than would have been passed upon him if he had been originally tried and eonvicted for bigamy; and it is difficult to, understand what course can be taken by the Court under the peculiar circumstances of the case, in case of a conviction. The prisoner himself complains very much of the course that has been taken in keeping him so long in suspense, and also that, having been declared innocent of the crime of wilful murder, lie should now be prosecuted for the minor offence of bigamy. He is still, of course, in custody, but it is understood that an application will shortly be made to one of the learned judges to admit him to bail, and it is very probable that the application will be granted, it being quite a usual course for pai ties charged with this description of offence to be admitted to bail, especially where there are no circumstances of aggravation. If the prisoner should, by a failure of evidence or any technicality, obtain an acquitthl, it is not at all unlikely that he will make a claim upon the Govbrnment for compensation for the pain and suffering he has undergone, but it is not probable that such a claim will be attended with any success. Mr. Sleigh has been retained to conduct the defence, but it is expected that a learned counsel will be specially retained to lead him on behalf of the prisoner.