4 Mo. 379 | Mo. | 1836
Opinion delivered by
The was a qui tam action, brought by against Brown to recover the penalty provided in the statqte against marrying minors, without the presence or consent of the parent or guardian. The defendant pleaded nil debit and had a verdict and judgment, to reverse which, Medlock now prosecutes the present writ of error.
The facts are preserved in the record by bills of exception. The defendant acted as a justice of the peace, duly commissioned and qualified; and united in marriage, Susan Medlock, the daughter of the plaintiff, to one Jesse Harris, which Susan Medlock was at the time of marriage a minor, under the age ■ of eighteen years. After the testimony was closed, “the defendant moved the court to instruct the jury, that unless they believed from the evidence, that the defendant joined inmaniage the plain-
We think the ¡court erred in refusing to give the instruction prayed for by the plaintiff. The burden of the proof of consent devolves on the defendant, in actions founded on this statute — Rev. code p. —. Though the may be sometimes required, and particularly m actions bn penal statutes, to make proof of the negation, think the proof of the affirmative in this case, comes more appropriately from the defendant, and upon the general principles which govern in such cases, should have been required of the defendant. In our opinion therefore, the circuit court erred in refusing to give the instruction, and ought to have granted a new trial. Its judgment is therefore reversed and the cause remanded.
I object to the opinion of the court, holding that every public' officer is presumed to do his duty ’till the contrary is proved.