Greenawalt v. McEnelley, 85 Pa. 352

Greenawalt v. McEnelley

85 Pa. 352 | Pa. | 1877

Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

We need not discuss the question whether Margaret Gilson would have been a competent witness prior to the Act of April 15th 1809, Pamph. L. 30. That act clearly made her competent, this being a contest between parties claiming the estate of Benjamin Guffey, her deceased husband, by devolution. She was not called to testify against her husband, nor to any fact the knowledge of which was acquired by reason of her confidential relations with him, but as to matters within her own knowledge.

There was abundant evidence to prove the marriage. There was her own direct and positive testimony ; the admission of their marriage by her husband, which is in the nature of direct proof; *356and there was evidence of reputation and cohabitation. The court instructed the jury that in order to establish a presumption of marriage, there must be evidence of cohabitation as well as reputation. This is undoubtedly the rule. See Richard v. Brehm, 23 P. F. Smith 144, where this subject is discussed and authorities cited by Mr. Justice Mercur. In this connection the court further charged: “ In this case it is conceded that the reputation of the fact as to whether they were married or not was divided in its character, and therefore there could be no presumption of the fact of the marriage raised from cohabitation and reputation. Cohabitation and reputation, in so far as they are developed in the cause, strengthening the one way or weakening the other, are proper circumstances to be looked at, either in affirmance of the truth of the assertions of Mrs. Gilson and the admissions of Benjamin Guffey, or in opposition to them, as they may tend to evince a want of truth in her statement. Whilst cohabitation and reputation are not by themselves, under the evidence in this cause, presumptive evidence of marriage, yet they are proper facts to be taken into consideration in determining the cause, as the courts say, with other concomitant circumstances; and if the jury are satisfied that the marriage is fairly established under all the evidence in the cause, they would be bound to conclude the fact of the marriage.” This was entirely correct; and taking the charge as a whole, it was a sound, clear and adequate presentation of the law of the case. The plaintiffs have selected some isolated passages from the charge, and assigned them as error,' together with the answers of the court to the plaintiffs’ fourth and fifth points. In the answer to the fourth point (first assignment), the court instructed the jury that “ the admission of Benjamin Guffey of. the fact of his marriage would be against his interest, and if established to have been repeatedly made under circumstances evincive of deliberation, and not by mere casual and unconsidered expressions, would be of great weight. Denial by him of the marriage would, however, be declarations in his own interest, and are entitled to but little weight in opposition to admissions against his interest.” The portion of this ruling that was especially criticized was the statement that the admission by Benjamin Guffey of the - fact of his marriage was against his interest. If we concede that proposition the remainder of the paragraph is free from objection. It is not necessary to discuss the abstract question whether admissions of marriage are against interest. The learned judge was not dealing with abstractions: he was applying the law to the facts of the case. As thus applied, his ruling was correct. The admissions were clearly against the interest of Mr. Guffey. They imposed upon him the burden of' .the support and maintenance of the woman and her child. This was a direct pecuniary charge. We throw out of the case all that was said upon the argument as to the blessings of the marriage *357state, and with it the scriptural citations tending to show that it “ is not good for man to be alone.” The interest referred to by the learned judge was a pecuniary interest, not a matter of sentiment. Taken in this sense, and applied to the facts of the case we see no error in the instruction.

We are unable to see any error in that portion of the charge embraced in the third assignment. The admissions by the parties of their marriage is in the nature of direct proof, and is certainly competent evidence of the fact. When such admission is made under circumstances that show it to be against interest, it is evidence against the person making it with the same force and effect as any other admission against interest. This has been held to be so in criminal cases. On the trial of an indictment for polygamy or adultery the prisoner’s deliberate admission of his marriage to the alleged wife is admissible as sufficient evidence of the marriage: 2 Greenl. on Ev., § 461, and authorities cited in note. So in an action for criminal conversation: Forney v. Hallacher, 8 S & R. 159.

The remaining assignments do not require discussion. They disclose no substantial error, and the judgment therefore must be affirmed.