3 Indian Terr. 396 | Ct. App. Ind. Terr. | 1900
The plaintiff testified upon that point as follows: “Q. At what age did you come to the Indian Territory? A. Six years old. Q. Who did you come with? A. My father and mother. * * * Q. State where you have been living from the time your father moved to the Indian Territory until you came to Muskogee. A. Near Bryertown, Cherokee Nation. Q. How far from where the defendant, Sam T. Davis, lived? A.' Six or seven miles. Q. How long have you known Sam Davis? A. Four or five years. * * * Q. When did your mother die? A. When I were nine years old. * * * Q. How and where did you live then after her death until you were fourteen years old? A. I still lived with my father. Q. State whether or not your father remarriéjj|Land, if so, how old you were when he married again. Aoi\ He married in about eighteen months after mother died. Q. How old were you at that time? A. I was eleven years old, I think. Q. How did you and your stepmother get along? A. Got along very well for a while, until my stepmother was married about two years, and then we did not got along from that time on. Q. Then what did you do? A. I left home, and went to Mrs. Star’s. * * * Q. What was your age when you went to Mrs. Star’s? A. Fourteen. Q. How long did you stay with her? A. I stay
Mrs. Ingram, witness, for plaintiff, testified: “The Court: Who do you refer to as ‘he’? A. Mr. Davis; that is the man in question. Mr. Seaver: Q. What did he say to you? Did he ask you to assist him? A. He told me that he had never enjoyed life since living with the present woman; that they were never married; that life was too short to be a spending it the way he was, and that he was going to take this girl away. Said that he had sold everything that he had, and put it in government warrants. I said, ‘What will you do with the old lady?’ He said he would leave her here: that he had turned money over to Frank Vore to pay some expenses for her. When he was talking to me about the girl I supposed he was in earnest. I never asked him. I did not question the matter, and when the girl came to me, and asked me, ‘What would you do about it?’ I said, T don’t know.’ ‘As to Sam Davis being married, I never heard of that. As to his making you a living, that is a settled fact. You know that; that he will make you a good living, you know: and as. to his making you a good husband, you have been living with them, and know his disposition. ’ She said, ‘He is too old.’ I made the remark that it is ‘better to be an old man’s darling than a young man’s slave.’ You may call it slang; I never thought I would have to repeat it. I said, ‘Marrying Sam Davis would beat dragging a cotton sack in a cotton patch with your young ones, which you would have to do if you married a poor man.’ In a few days she came to me
Mrs. Eobins, witness for plaintiff, testified: “Q-How long have you known Sam Davis? A. I guess about eighteen or twenty years; I don’t remember. Q. I will ask you to state if you know what the general understanding is
The defendant testified for himself as follows: “Q. Your name is Samuel T. Davis? A. Yes, sir. Q. You are the defendant in this action? A. Yes, sir. Q. Tell this jury when you began to live with your wife, and how you began to live with her? A. In May, 1881, we contracted to live together as man and wife. Q. What was your contract? A. That we would live together and treat each other as man and wife. Q. Ever have intercourse before that? A. No, sir. * * * Q. Tell this jury whether you ever told this plaintiff, Eosey Pryor, or Mrs. Ingram, or anybody else, that you were not married. A Never did; always claimed that I was married to my wife, as I stated here a while ago. T always recognized her as my wife, and expect to in the future. ’ ’
It is our opinion that this evidence was proper to go to the jury, and be considered by them, to determine the question whether defendant was a married or single man. The court below gave the following instructions to the jury upon this question:
“First. That the testimony in this case fully establishes the fact that the defendant and his reputed wife entertained such relations to each other by matrimonial cohabitation, by holding each other out to the community a$ man and wife, and by the general recognition of the neighborhood in which they lived, as to constitute them man and wife, and that, by reason of such relations existing between the dejfendant and his reputed wife, he was at the time of the inury complained of in this case incapacitated on his part from contracting a marriage alliance with any other woman.
*407 ‘ ‘Second. The relations however which existed between the defendant and his reputed wife, and which incapacitated him from making a valid and binding contract of marriage on his part, do not necessarily relieve him from the consequences of any marriage contract that he may have made with the plaintiff in this case, if you believe from all the evidence that she, when such alleged promise was made, was honestly and in good faith of the opinion and belief that the defendant was free to contract a.lawful matrimonial alliance, and that-such belief was induced by the misrepresentations of the defendant.
“Third. It is conceded in this case that the plaintiff well knew of the facts which were necessary to constitute a marriage between the defendant and his reputed wife, and if you believe from the evidence in this case that she reached an erroneous conclusion as to the legal effect of the facts known to her, without any deception or undue advantage taken of her, or fraud practiced upon her, by the defendant, she is in law bound by the legal effect of such known facts, and, if you should so believe from the evidence in this case, the court instructs you that the plaintiff cannot recover, and that you should find for the defendant.
* ‘Fourth. The court instructs you that a mistake or ignorance of the law happens when a person, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect; and if you believe from the evidence in this case that the plaintiff was in full possession of all the facts which have been brought out in evidence with reference to the relations existing between the defendant and his reputed wife, and that such erroneous conclusion, as to the legal effect of such relations, was brought about by the fraud or imposition or misrepresentations of the defendant, and if you further find and believe that The defendant knew the legal effect of the relations which existed between him and*408 his reputed wife, which would incapacity [incapacitate] him from making a lawful marriage contract with the plaintiff, and that he took advantage of her ignorance of such legal effect of the facts known to her, induced her to believe that he could legally marry her, and that she honestly and in good faith believed in the false and fraudulent statements thus made to her, and that she was ignorant of the legal effect of the facts which were known to her, in that event you should find for the plaintiff.”
The fourth instruction above quoted is substantially in harmony with the second instruction; the court below instructing the jury that, if they believe “that the defendant
The forth proposition presented by appellant is the nineteeth error, which is assigned to the following instruction of the court, viz : ‘ ‘And the court further instructs you that if you find from the evidence that the defendant made a contract for marriage with the plaintiff, as set forth in these instructions, and afterwards refused to carry out the same, and after such refusal circulated the facts of his seduction of the plaintiff, and of his relations with her, that you may take such conduct on the part of the defendant in consideration in determining the measure of damages to be awarded plaintiff.’' It is not claimed that this instruction did not
The fifth proposition presented by appellant is that the twentieth, and twenty-first assignments of error be considered together. The twentieth is the exception to overruling defendant’s motion for new trial, and the twenty-first assignment of error is as follows: “The court erred in receiving and entering judgment on the verdict of the jury in this cause, because the evidence shows that said verdict was a quotient verdict. ’ ’ The defendant sought to sustain this assignment of error by the examination of Mr. Bell, the foreman of the jury, which was as follows: “Mr. Hutchings: We desire to call Mr. Bell, a juror. Mr. Gibson: We object. Objection overruled; and Mr. Bell, called as a witness on the part of the defendant, having been first duly sworn, testified as follows, to wit: Mr. Hutchings: Q. You