14 N.Y. Crim. 407 | New York County Courts | 1900
The complainant, Elizabeth Miller, who claims to be the wife of the defendant, is forty-four years of age. She was married in 1873 to one George Fucall, in the state of Few Jersey, and lived with him for seven years. There were three children born of such marriage, two of whom are living in Few Jersey, and one, the witness, Lizzie Toole, residing in Syracuse. The complainant met the defendant at her husband’s house in
The claim of the plaintiff is in brief that, although this cohabitation was illicit in its origin, a change in its character may be shown by acts and circumstances indicating that the connection has become matrimonial within the principles laid down by Judge Vann in the case of Gall v. Gall, 114 N. Y. 118. And that evidence of the admissions of the defendant and the acts of the parties justify a finding of a marriage subsequent to the death of Nucall, the complainant’s husband, and that such finding is binding upon this court. Of course no valid marriage between these parties of any sort could occur while Nucall lived, and it was incumbent upon the complainant to show the fact of his death by competent evidence; and this I think she has failed to do. In considering this question, we can easily be confused by the careless use of terms. It is a fact that hearsay evidence is admitted to prove pedigree, within certain limitations, and that the term pedigree embraces proof of death. Eisenlord v. Clum, 126 N. Y. 552. But such evidence is not admissible, i. e., hearsay proof of death, until the declarant is himself dead. See Stephen’s Digest of Evidence, article 25. “ Statements, written or verbal, of facts in issue or relevant or deemed to be relevant to the issue, are deemed to be relevant, if the person who made the statement is dead, in the cases, and on the conditions, specified in articles 26-31, both inclusive.” And see Eisenlord v. Clum, 126 N. Y. 563. Article 31 refers to declarations as to pedigree. If the statements of the writers of the letters mentioned, and of the daughters in Jersey City are admitted, we would have hearsay evidence of a report which is itself hearsay. The report that Nucall was dead is
The rule, permitting statements of deceased persons as to matters of pedigree to be given, arises from the necessity of the situation and is subject to many limitations. I quote from the first condition named in article 31 of Stephen’s Digest of Evidence : “ Such declarations are deemed to be relevant only in
In construing the questions arising upon this appeal, there should be no presumption in favor of the complainant, who has abandoned one husband and two families. It is not my intention to pass upon the question, assuming that the death of Hu. call was properly shown, whether there is sufficient evidence of a subsequent marriage to require its submission to a jury. For the reasons stated the record of conviction and warrant of com. mitment of the magistrate cannot be sustained. There is also another difficulty of quite a serious character presented in the record before me. The defendant assuming that he is the husband of the complainant, could, within the provisions of section 899, be convicted of having actually abandoned his wife or children without adequate support—the evidence might justify this particular finding—or of leaving them in danger of becoming a burden upon the public, or of having neglected to provide for them according to their needs. The magistrate found the defendant guilty of being a disorderly person : “ In that the said George IT. Miller, at the town aforesaid, on the said 24th day of July, 1899, did leave his wife in danger of becoming a burden upon the public.” There is no proof to sustain this finding. It appears that Miller deeded a house and lot to the complainant, and it does not appear that this property is not of sufficient value, as between the town of Geddes and the complainant, to amply protect the town from the complainant’s becoming a burden upon it. It appears affirmatively that no ap plication has been made by her to the overseer of the poor for support.
I desire to leave the complainant in a position to retry the