People v. McQuaid

85 Mich. 123 | Mich. | 1891

McGrath, J.

Defendant was convicted of bigamy in marrying, at Fowlerville, one Emma Dodge, December 7, 1889, while having another wife living. The information charged the first marriage to have been had with one Jennie Gartley, in December, 1880, at Allegheny city, Penn. The second marriage was clearly proven, and the only questions raised relate to the proofs of the first marriage.

A number of assignments of error are presented, but defendant’s counsel has summarized them as follows:

1. Was error committed in proving the marriage laws of Pennsylvania?

2. Was the marriage, under the laws of Pennsylvania, sufficiently proven to meet the requirements of the criminal laws of this State?

3. Was respondent injured by the rulings of the circuit judge?

Our statutes relating to the proof of the statute law and common law of other states are as follows:

“ Sec. 7508. Printed copies of the statute laws and resolves of any other of the United States, or of any territory thereof, or of any foreign state, if purporting to be published under the authority of the respective governments, or if commonly admitted and used' as evidence in their courts, shall be admitted in all courts and in all proceedings within this State, as prima facie evidence of such laws and resolves.¹

“ Sec. 7509. The unwritten or common law of any other of the United States, or of any territory thereof, or of any foreign state or country, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts may also be admitted as evidence of such law.”

No printed copies of the statute laws of the state of Pennsylvania, purporting to be published under the authority of the government of that state, were offered in 'evidence, and nothing having, or purporting to have, the sanction or authority of that state was offered in evidence to prove its laws. But the prosecution proceeded to show that Brightly’s Purdon’s Digest was a compilation of the statutes of Pennsylvania, and was commonly admitted in all courts and in all proceedings in that state, as prima facie evidence of such laws. To show this, one Jacob L. Thompson, resident of that state, was called, and testified in substance, under objection and exception, that in his business he had frequent occasion to refer to the statutes of Pennsylvania; that, when he did desire so to refer, he consulted Brightly’s Purdon’s Digest; that there is no other compilation of the statute laws of Pennsylvania; that he had been in the courts of that state, and they there used said digest as evidence of the statute laws of said state; that attorneys had referred to it in his presence as authority; that he had been in courts, and observed the introduction of these books as containing the statutes of Pennsylvania for 20 years. Brightly’s Purdon’s Digest of the Statute Laws of the State of Pennsylvania, consisting of two volumes, was then offered in evidence, and received under objection and exception; the particular chapter to which attention was called being entitled “ Marriage ” (volume 2, p. 114=?).

It is claimed that the witness was not shown to be an expert, and therefore not competent. The question of his competency was one for the court, and not for the jury. It was within the knowledge of the trial court that Brightly’s Digest is not a fugitive publication, but that it has been published for a quarter of a century as a compilation of the statutes of the state of Pennsylvania; that it occupies a place in every bar library of our own State, and in many of our private libraries; that its existence must be a matter of as general knowledge in that state as the existence of HowelPs compilation is here. The information called for from the witness comes within the range of what is denominated “expert testimony,” if at all, only because of the place where the testimony was to be given. In Pennsylvania the information called for was within the range of ordinary observation and intelligence, and the witness was a resident of that state. The inquiry involved not what was the law of that state upon a particular subject* but simply in what form the statutes of that state were published* and whether the books presented were received and recognized as authority. The witness was a minister* empowered by statute to perform the marriage ceremony, and required as such to observe certain prescribed formulas. He would naturally consult statutory provisions, and testified that he did habitually consult the statutes of that state. A cardinal has been held competent to prove the Eoman matrimonial law. Here a minister, authorized by statute to perform the marriage ceremony, is called simply to identify the book in which the law is published* and to show the common acceptance of the publication as authority. The testimony was competent, and there was no error in the admission of the digest, nor was there error in the admission of the reports for the purpose of showing what construction the courts of that state had put upon the statute.

The second point relates to the sufficiency of the proofs of the first marriage. The statute regarding marriages* introduced in evidence, provides* among other things, that the parents or guardians shall* if convenient* be first consulted with, and the parties’ clearness of all engagements signified by a certificate from some credible person where they live or have lived* produced to such religious society to which they relate* or to some justice of the peace of the county in which they live, and by their affixing their intentions of marriage on the courthouse or meeting-house doors in each respective county where the parties do reside or dwell* one month before solemnization thereof; the which said publication* before it be so affixed as aforesaid, shall be brought before one or more justices of the peace in the respective counties to which they respectively belong; which justice shall subscribe the said publication, witnessing the time of such declaration, and date of the said publication, so to be affixed as aforesaid. And all marriages shall be solemnized by taking each other for husband and wife, before 12 sufficient witnesses; and the certificate of their marriage, under the hands of the parties and witnesses, at least 12, and one of them a justice of the peace, shall be brought to the register of the county where they are married, and registered in his office. It further provides that if any clergyman shall take upon him to join in marriage any persons without such publication, such clergyman shall forfeit the sum of 50 pounds. None of these provisions of law were complied with. The only witness present was the hotel clerk. The parents were not consulted. No publication was had, and no registry of the marriage made, as required. The formal ceremony of marriage took place at Allegheny city, some distance from the homes of the parties. It had all the ear-marks of a clandestine marriage. Even the minister performing the ceremony was liable to a foi'feiture of 50 pounds for performing it in the manner claimed.

The rule in Pennsylvania regarding marriages not performed strictly in accordance with the statute is the same ,as that laid down in our own State. In this class of cases the invariable rule is that proof of such an informal marriage must be supplemented by proof of cohabitation. The only testimony upon this point was that of the witness Thompson, and his testimony is so clearly hearsay as to be wholly incompetent. He saw the respondent but once after the marriage and before his arrest here, and then he was driving past witness' house. He saw Jennie, the wife, but once, and there is no testimony that he has ever seen the parties together at any time or place after the ceremony. The witness admits upon the trial that all he knows regarding the wheréabouts of the parties is mere rumor. Defendant’s counsel moved to strike out this hearsay testimony of the witness, but the court refused. The court charged the jury that prima facie a good marriage is shown when the contract of marriage, whether in due form or not, is proven, followed by cohabitation; but there was no competent testimony showing the conduct of the parties after the marriage or of cohabitation.

The .conviction must therefore be set aside, and a new trial had.

The other Justices concurred.

1 As amended by Act No. 113, Laws of 1885 (3 How. Stat. p. 3724).