36 Neb. 808 | Neb. | 1893
The plaintiff in error was informed against in three counts, the first charging him with deserting his wife, Matilda Bailey, on the 1st day of January, 1887, and from
1. The first question presented relates to the sufficiency of the information, which was verified by the oath of Matilda Bailey before a notary public in Lancaster county. It is urged that a valid oath is essential to an information and that the district court acquired no jurisdiction under an information not verified before a magistrate. There can be no doubt that a verification before a notary public is insufficient (Richards v. State, 22 Neb., 145), but this was a defect open merely to a motion to quash and was waived by pleading to the information. It was not jurisdictional. (Davis v. State, 31 Neb., 252.)
2. The next point urged is that there was not sufficient evidence to establish a marriage between plaintiff in error and Matilda Bailey, who is alleged in each count to be his lawful wife. It appears that plaintiff in error and Matilda Bailey, then known as Mrs. Tyson, met at Lyons, Iowa, in 1866, plaintiff in error going to the house of Mrs. Tyson to board. They lived together in Lyons until about 1869, when they came to Nebraska together and soon after took up a homestead. They seem to have lived together until 1887, when Matilda left him. One child, still living, was born to them. Matilda testifies in one place that plaintiff in error came to board and “promised that he would be
Q,. Will you state to this jury how you were married?
A. Yes, sir.
Q,. How?
A. Why, he promised that he would be my husband and I promised to be his wife.
Q,.- Is that all of it?
A. Yes, sir, and we talked together.
Q. You talked together ?
A. Yes, sir.
Q. And you thought you were married ?
A. Yes, sir.
Further: “ He said it was a mere matter of form getting married, and if I would live with him he would live with me, and I told him I would, I guess.” “Yes, sir, I told him I would.” This conversation, she says, occurred upon a Sunday afternoon, about the middle of August, 1866. She also says that their relations were kept secret in Iowa because of the opposition of her older children. They eertáinly lived from that time until the separation in 1887 as man and wife, and she has been known to neighbors and friends as Mrs. Bailey ever since coming to Nebraska. There is also some evidence of Bailey’s introducing her to strangers as his wife. It cannot be denied that there are many things in her own testimony and elsewhere in the record tending to discredit her story, but it is the province of the jury to pass upon the credibility of witnesses, and if her testimony above quoted establishes a marriage the verdict cannot be disturbed on the ground of insufficient evidence. (Dutcher v. State, 16 Neb., 30.)
Marriage is, in Nebraska, a civil contract to which the
It is claimed that in cases like that at bar there must be direct evidence of the marriage. This may be true, but Mrs. Bailey’s testimony is direct evidence of the fact. The rule, when examined in the light of the authorities, only forbids in such cases the establishing of a marriage by proof of cohabitation, reputation, and “ holding out.” The reason is that while ordinarily such evidence is sufficient because the law places that interpretation upon ambiguous acts which favors innocence, and will not assume that a cohabitation is illicit if by presuming marriage it would be lawful, yet in a prosecution for adultery this presumption conflicts with the presumed innocence of the prisoner of the crime of which he is charged, and therefore such evidence in such cases cannot alone establish a marriage. The essentials of a valid marriage are in all cases the same, the distinction being in the mode of proof alone. Mrs. Bailey’s testimony is direct and competent evidence in this case, and if believed, establishes a contract as binding for all purposes as if made in the presence of chosen witnesses at the altar.
3. Plaintiff in error contends that, there was no evidence of his cohabiting with Della Brong until after Matilda Bailey ceased to live with him, and that therefore no conviction could be had on the third count. Matilda Bailey testified that she left him in February, 1887; that “he went with Della Brong and staid there the winter before I
4. It is further contended that the second count, alleging a single act of adultery, was founded upon a portion of the offense charged in the third count, and that therefore a conviction and sentence upon each count would amount to a double punishment for the same offense. We need not inquire whether or not this point would be well taken, provided the single act of adultery were within the period of adulterous cohabitation proved. It is not contended that two such counts may not be joined in one information and a conviction had upon either according to the evidence. As already said, the evidence shows, and without contradiction, that plaintiff in error and Matilda Bailey have not lived together since February, 1887. The offense charged in the third count—keeping another woman and cohabiting with her in a state of adultery while living with one’s wife—must therefore have been complete at that time, and aa act of adultery later would constitute a distinct and separate offense under another clause of section 208 of the Criminal Code.
5. A motion for a new trial was overruled and sentence passed December 5, 1889, and on January 18, 1890, a supplemental motion for a new trial was filed, supported by affidavits of newly discovered evidence. The affidavit of R. H. Woodward is to the effect that he met Matilda Bailey at the state fair grounds in Lincoln in 1887 and in & conversation, narrated at length in the affidavits, she declared that she had come to Nebraska with Bailey and had
Reversed and remanded.