157 A. 214 | Pa. Super. Ct. | 1931
Argued September 28, 1931. Appellant was convicted of adultery. The assignments of error are directed to two main questions: (1) Whether there was competent evidence that the defendant was a married man; (2) whether the charge of the court was adequate on the question of the marriage.
(1) There was no attempt to prove the defendant's marriage by any record, or by witnesses present at it. The wife was not even called to testify, though she lived in the county and was a competent witness *380
to prove the marriage: Act of May 23, 1887, P.L. 158, sec. 2 (b), as amended by Act of May 11, 1911, P.L. 269. The proof on the subject was confined to witnesses whose testimony that defendant was married, was based on knowledge of his cohabitation and reputation as a married man. When joined with the defendant's declaration or admission that he was married, this evidence has been held sufficient in a number of states to sustain a conviction of adultery or bigamy. See Warner v. Com., 2 Virginia Cases 95; Oneale v. Com., 17 Grattan (Va.) 582; Cook v. State,
It must be remembered that since the Marriage Act of 26 George II, c. 23, what is known as `common law marriages' are not recognized as valid in England, and Lord MANSFIELD'S decision was made after the Marriage Act of 26 George II was in force, which prescribed the mode of perpetuating the evidence of marriage referred to by Judge GIBSON in Forney v. Hallacher, supra, p. 162. *381
But common law marriages are still valid in this Commonwealth and while cohabitation and reputation, as man and wife, do not constitute a marriage, they are circumstances from which a marriage may be presumed and are sufficient evidence to justify a finding of a marriage in the absence of proof, or admission by the party claiming a marriage, that no actual marriage in verbade praesenti took place: Bisbing's Est.,
There is no reason, apart from a statute directing otherwise, why evidence which is competent to prove a marriage in a civil case should not be competent in a criminal case. The fact to be proved is the same. The process of reasoning is the same. Evidence which tends to establish a marriage in a civil case does not have other and different effect in a criminal prosecution. As was said by Judge WHITE in Warner v. Com., supra, p. 105: "It cannot be contended, that when the same fact comes in dispute in a civil and criminal case, the law requires other and different evidence to establish such fact in one case, from what it requires to establish the fact in the other." The difference is in the degree of proof required. In the former the proof need only preponderate; in the latter it must be beyond a reasonable doubt; but the effect or weight of the evidence is a question for the jury. In Com. v. Gamble,
The rule at first adopted by the courts in Massachusetts, which was much narrower and stricter than that applied in this State, was changed some years ago by statute so as to provide that: "Marriage may be proved by evidence of an admission thereof by an adverse party, by evidence of general repute, or of cohabitation of the parties as married persons, or of any other fact from which it may be inferred": General Laws of Massachusetts, (1921), ch. 207, sec. 47.
On full consideration we are of opinion, that at *383 least until so-called common law marriages are declared invalid in this Commonwealth, proof of marriage by cohabitation and reputation, under proper instructions from the court as to the effect of such evidence, may be sufficient to sustain a conviction of adultery or bigamy.
(2) The court's charge on the subject of the defendant's marriage was limited to the statement that in order to convict the defendant, the jury must be satisfied beyond a reasonable doubt that the defendant "at the time alleged by the Commonwealth was a married man; that is, that he had a lawful wife living and in full being." No instructions whatever were given the jury as to the effect of evidence of cohabitation and reputation; that it did not constitute a marriage, but was only evidence tending to prove an actual marriage, which might be sufficient to base a finding that a marriage had taken place, depending on the credibility and effect which the jury gave it when considered in connection with the presumption of the defendant's innocence.
In Com. v. Jackson, 11 Bush 679, the Court of Appeals of Kentucky said: "When the declaration of the prisoner and the fact that he has recognized and cohabited with the woman alleged to be his wife are alone relied upon, the jury should be told that this is only evidence tending to prove an actual marriage and that it is for them to decide whether the facts proven are sufficient to warrant them in finding that the prisoner was in fact married to the alleged wife, and unless they so believe [that is, so find beyond a reasonable doubt] they should acquit, although they may believe he recognized and cohabited with her as his wife."
We are of the opinion that the charge of the court was fatally inadequate on this subject.
The second assignment of error is sustained. The judgment is reversed, and a new trial awarded. *384