¶11. The testimony of Fowler was competent, under Gen. Sts. c. 106, § 22, to be submitted to the jury in connection with the other evidence, to establish the fact of the marriage of the defendant with Alice Oates.
¶22. The defendant does not bring himself within the excepted cases enumerated in Gen. Sts. c. 165, § 5. The fact that bis wife “ has been continually remaining beyond sea ” for the last year, abiding at her usual place of abode, (he having deserted her, and come to this country,) does not exempt the defendant from punishment for polygamy. Further, it may be added that the provision in § 5, “ and remained absent for the space of seven years,” applies as well to the case of the wife remaining beyond sea, as to the case where one party “ has voluntarily withdrawn from the other.” The court properly ruled that if the defendant was married to Alice Oates, and was living with her as his wife in 1862, and he came to this country, leaving her in England, and married another woman in this country, he was not within the statute exception.
¶33. The variance between the proof and the allegation in the ndictment in respect to his wife Alice Oates continually remaining beyond sea is wholly immaterial. The case as proved established all that was essential to sustain the indictment under the etatute.
¶4 Exceptions overruled.