163 Mass. 453 | Mass. | 1895
1. Special police officers are not exempt from service as grand jurors. Pub. Sts. c. 170, § 2. Nor does the fact that a juror is exempt absolutely disqualify him from service. He may be excused at his own election, or may be excepted to by any party, but, if he serves, the action of the grand jury or traverse jury is not made void. Munroe v. Brigham, 19 Pick. 368. See also Wassum v. Feeney, 121 Mass. 93; Moebs v. Wolffsohn, 143 Mass. 130.
2. There is neither authority nor reason for the contention that the indictment was void because one of the grand jurors appeared as a witness before the grand jury of which he was a member at the same sitting of the court at which the indictment was presented. A grand jury may properly act upon the personal knowledge of any of its members communicated to his fellows under no other sanction than the grand juror’s oath. Commonwealth v. Woodward, 157 Mass. 516.
And there izs no impropriety or wrong to the accused in having a grand juror who has personal knowledge as to matters inquired of by his grand jury sworn and testify as a witness. Indeed, there may under our practice be some incidental benefit to the accused in that course, as in that case his name will be found in the list of witnesses which is to be filed of record by the clerk. Pub. Sts. c. 213, § 9.
3. The motion to dismiss, by which alone the two questions above considered were raised, must also have been overruled for the technical reason that neither of the facts alleged in it as avoiding the indictment appeared upon the record of the cause, and so could not be availed of by a motion to dismiss. Commonwealth v. Fredericks, 119 Mass. 199, 204, and cases cited.
4. As the writing purporting to be a letter written and signed by the defendant was identified as his handwriting, it was competent evidence against him. Stone v. Sanborn, 104 Mass. 319, 324. Wiggin v. Boston & Albany Railroad, 120 Mass. 201.
6. The attested copy of the record of the marriage of the defendant to Annie Dillon, from the records of the city registrar of Boston, certified to by the assistant registrar, was admissible in evidence. The records of town clerks relative to marriages are made by statute prima facie evidence in legal proceedings of the facts recorded, and a certificate signed by the clerk is made admissible as evidence of the record. Pub. Sts. c. 32, § 11. See also Pub. Sts. c. 145, § 29. Towns and cities of more than ten thousand inhabitants may choose a person other than the clerk to be registrar, and in that case the provisions concerning clerks apply to the registrar. By St. 1885, c. 266, § 5, the city registrar of Boston has power to appoint his own subordinates. General authority to make ordinances concerning registrars and registration is given by Pub. Sts. c. 32, § 18. By the Revised Ordinances of the City of Boston of 1885, c. 20, § 2, there are allowed to the city registrar for the discharge of the duties of his department three clerks for copying and three for recording. By St. 1892, c. 314, § 2, the city registrar is required to appoint from his subordinates two assistant city registrars, and the same section provides that the certificates and attestations of either assistant city registrar shall have the same force and effect as those of the city registrar. The result is, that the certificate of the assistant city registrar admitted in evidence under the defendant’s exception was plainly competent.
7. In proof of the defendant’s unlawful marriage charged in the indictment, the government was allowed, against his objection and exception, to put in the testimony of a witness who performed the ceremony, that he was a clergyman in Boston and an ordained minister and pastor of a Congregational church, and that he had been such pastor for many years. The defendant contends that the testimony of this witness was not compe
8. The different requests for rulings founded upon the contention that the defendant was not guilty of polygamy, if at the time he contracted his second marriage he had a bona fide and reasonable belief that his first wife was dead, were properly denied. We consider that question to have been settled in this jurisdiction by the decision in Commonwealth v. Mash, 7 Met. 472, rendered in the year 1844, in which, speaking of a statute substantially like that under which the present defendant was indicted, this court said that16 it was not the intention of the law to make the legality of a second marriage, whilst the former husband or wife is in fact living, depend upon ignorance of such absent party’s being alive, or even upon an honest belief of such person’s death.” See Rev. Sts. c. 130, §§ 2, 3; Gen. Sts. c. 165, §§ 4, 5; Pub. Sts. c. 207, §§ 4, 5. This statement has been since acted upon as a part of our system of law regulating marriages and controlling persons contemplating marriage. See Commonwealth v. Munson, 127 Mass. 459, 470.
If it ought to be changed the change should come from the Legislature. We therefore decline to treat the defendant’s contention as an open question in this Commonwealth. If the reasons which, after much difference of opinion, have led to the final declaration in England that an honest and reasonable belief in the death of the former wife or husband is a good defence to a prosecution for polygamy, should be dealt with here, it should