36 Pa. Super. 146 | Pa. Super. Ct. | 1908
Opinion by
All of the questions that need be discussed on this appeal are raised by the fourth, fifth and sixth assignments of error.
The defendant, when testifying in his own behalf, admitted the alleged sexual intercourse between himself and Etta Crissman, but denied that it was adulterous, as alleged in the indictment, and testified that prior thereto they were united in marriage on November 14, 1906, at Baltimore, Maryland, by a minister, whose certificate he produced and put in evidence. Therefore, as the case stood when the introduction of evidence was stopped, and the remark, ruling and instruction complained of in these assignments were made and given, the only essential to a conviction that was in dispute was the alleged marriage of the defendant to the prosecutrix prior to November 14, 1906.
As to this disputed matter, the commonwealth adduced evidence of two kinds: first, the testimony of the prosecutrix that they were united in marriage by formal ceremony conducted by a minister in the state of Indiana, on August 13, 1898;.second, the testimony of other witnesses to the effect, that the parties subsequently cohabited at divers places outside of this state and at Bedford in this state, as if they were husband and wife, and that the defendant on several occasions spoke of the prosecutrix, and introduced her to others, as his wife. The defendant, on the other hand, testified positively and emphatically, that no marriage ceremony, or pretended marriage ceremony between him and the prosecutrix was performed at the time and place testified to by her,. or at any other time or place; that they never were married; that he never promised to marry her or agreed to a marriage with her. Not only his direct testimony as to the beginning of their relation, but his testimony as to acts,, declarations and conduct during the period over which their cohabitation extended, which affected the prosecutrix as well' as himself, tended, if believed, to support his contention that the relation between them was meretricious in its inception and continued to be so to the end.
If the case had rested exclusively upon the testimony of
The foregoing recital of the proceedings on the trial shows that the court committed grievous error in arresting the introduction of evidence before the defendant rested. To assume, as the court must have done, that the defendant’s representations above referred to, and his testimony that he had made them, so conclusively established the fact of marriage that the result of the trial could not be affected by any further evidence that might be offered was wholly unwarranted in law as we shall presently show. Nor was it warranted in fact, for as appears by the sixth assignment of error the defendant had other relevant and material evidence which he was prevented from ever offering until after binding direction to convict had been given. This mode of procedure cannot be approved; neither can it be said that it was harmless error. It is only under very exceptional circumstances, if ever, that the court will be justified in giving binding direction to the jury to convict the defendant in a criminal case. Under no circumstances may' this be done, without giving him a fair opportunity to present all of his relevant and material testimony, and according to him the constitutional right to be heard by his counsel upon the question.
But apart from the irregularities upon which we have commented, the judgment must be reversed for the equally substantial reason that the instructions to the jury were erroneous under the evidence that was admitted. By the law of Pennsylvania the status of marriage is reached through contract, deriving its validity from the consent of the parties thereto. There are different modes of proving the fact of marriage, but that it must be proved when it has been put in issue by a plea of not guilty to an indictment charging adultery, before the defendant can be convicted of that offense, is indisputable. It is not necessary to prove a ceremonial marriage in the presence of a civil or religious officer, but in the absence of that and of direct evidence of a marriage per verba de prsesenti, there must be proof of conduct or declarations from which it
• Notwithstanding the unfortunate expression in the charge,
Judgment reversed and venire facias de novo awarded.