24 N.C. 346 | N.C. | 1842
This was an indictment for bigamy, charging the first marriage to have been in Tennessee in 1823, with Deadema Kidwell, and the second marriage in Surry County in this State, in 1838, with Leah Carter. On the trial the State called Josiah Cluck, who swore that the resided in the Jefferson County, Tennessee; that many years before — he could not be certain as to the time — he was present at the house of his brother Daniel Cluck, in the said county, and saw Patterson, the prisoner, married to one Diemena or Diema Kidwell; he was not certain as to her name; it was Diemena or Diema or some such name; he had no acquaintance with her, before or afterwards; knew her only as Mrs. Patterson; the marriage ceremony was performed by one Isaac Barton, an old Baptist preacher, who was now dead; he had frequently heard Barton preach, and, although not himself a member of the Baptist Church, he knew that Barton had for many years before and since preached and been recognized and considered as a regular member of the gospel; he had regular meeting houses and congregations, where he was in the habit of preaching at stated times. The witness stated that it was not a large wedding, nor a very small one; he supposed about twenty persons were present; that Barton stood up in the floor, Patterson and Miss Kidwell standing before him; Barton asked for the license; Patterson handed him a paper; Barton said that authorized him to celebrate the marriage, and called upon all who knew any impediment to make it known or forever thereafter hold their peace: Barton then told the parties to join hands; asked Patterson, "Do you take this woman for your wedded wife, and will you love and cherish her and cleave to her only until death?" to which Patterson assented; he then asked Miss Kidwell, "Do you take this man for your wedded husband, and will you cherish and obey him and cleave to him only until death?" to which she assented. (348) He then pronounced them man and wife. The witness was asked if he had witnessed any other marriages in Tennessee, and how they were celebrated. He answered that he had been married in Tennessee himself, and had witnessed many weddings there; they were all solemnized in the same way as the one described by him, and he never heard any question about their validity or unlawfulness. This question and answer were objected to by the prisoner's counsel, but admitted by the court.
Daniel Cluck was then called, and swore that he resided in Jefferson County, Tennessee; was present at the marriage of the prisoner and Diadema Kidwell. The ceremony was performed at his house by old Isaac Barton, who was a regular Baptist preacher, and had acted and been recognized as such for many years before and after. He gave the same account of the manner in which the ceremony was performed as the former witness gave, and upon, being asked the same question, said *246 he was married himself in Tennessee, and had been present at several other marriages; they were all solemnized in the same way as the marriage of Patterson and Diadema Kidwell, and he never heard that their validity or lawfulness had been questioned. He said Mrs. Patterson was his wife's sister, and he knew her Christian name was Diadema; she was called by that name and married by that name. The marriage took place nineteen years ago. Patterson and his wife settled about 2 miles from him, and lived together as man and wife for many years, he could not say how long, but until they had five children, when they disagreed and parted; but Patterson stayed in the same neighborhood four or five years after the separation, when he left the country and took the children with him. Mrs. Patterson still lives in his neighborhood, and was at his house a few days before he left home. The fact of Mrs. Patterson being alive was also proved by the witness Jacob Cluck.
Both these witnesses, upon cross-examination, were asked if the prosecutor had not paid them for coming to this State as witnesses, and replied that they had never been paid a cent for coming.
The State then called one Swain, who swore that he was a justice of the peace for the county of Surry, and as such had married the (349) prisoner and Leah Carter, who was a single woman. The marriage was solemnized at his house in Surry on ____ day of _____, 1838. The license was produced. He stated the manner in which he was in the habit of performing the ceremony, and in which he had married the prisoner and Leah Carter. It was the same as that described by the witnesses Jacob and Daniel Cluck. He said the wedding took place about sunrise, and Patterson, and Leah Carter started off soon afterwards.
The solicitor for the State then read a copy of the laws of Tennessee on the subject of marriage, certified by the Secretary of State of this State as prescribed by the statute (Rev. Stat., ch. 44, sec. 3). This was objected to by the prisoner's counsel, because, as he alleged, it appeared upon its face to be only detached sections; but it was received by the court. The solicitor then offered to read a record of the bond and license, certified by the record of the county court of Jefferson County, Tennessee. This was objected to, and the objection was sustained, because, although by the laws of Tennessee the bond and license are required to be filed in the office of the clerk of the county court, they are not made a record which he is authorized to certify.
The prisoner's counsel then called a witness and proposed to ask him whether Jacob and Daniel Cluck had not told him that the prosecutor had paid them for coming to this State as witnesses. This was objected to and rejected by the court.
The prisoner's counsel then introduced a witness who swore that, at *247 the last term of the court, finding Jacob and Daniel Cluck, who had attended as witnesses, out of money, he had assisted them in borrowing $10 to bear their expenses home; but this was not done at the instance of the prosecutor.
The prisoner's counsel then called on Sammons, who swore that he had resided in Tennessee about two years, some seven or eight years ago; was well acquainted with the character of Daniel Cluck, and that he was a man of bad character. Upon his cross-examination this witness was asked whether he had not started, when he went to Tennessee, between sundown and sunrise. This question was objected to as tending to make the witness disparage himself, but was allowed by the court. The witness answered that he had started after night. He was then asked if he had not started back from Tennessee between sundown and (350) sunrise. He said he had.
The prisoner's counsel then called Leah Carter, who was alleged to be the prisoner's second wife, and proposed to ask her whether the prisoner ever had connection with her. She was objected to on the part of the State, and the objection was sustained by the court, because the prisoner could not examine her without admitting that she was not his wife.
The solicitor for the State then called Joshua Carter, who swore that after the prisoner had married his daughter he went out to Tennessee, and that the witnesses Jacob and Daniel Cluck had the character of respectable men in that country. Upon cross-examination, this witness said he could not say whether the prisoner had consummated his marriage with his daughter or not; that as soon as he heard of the contemplated marriage he pursued his daughter and found her at the house of the prisoner, and succeeded in getting her home with him by 12 o'clock of the same day on which they were married. This witness also deposed that he had frequently seen Mrs. Patterson in Tennessee, and that her name was Diadema.
The prisoner's counsel insisted, first, that his marriage with Diadema Kidwell had not been proven to be valid according to the laws of Tennessee; secondly, that supposing her name to be Diadema, there was a fatal variance from the name Deadema set out in the indictment; thirdly, that to constitute the offense of bigamy, the second marriage should not only be celebrated, but consummated by having connection; fourthly, that it did not appear but that the prisoner's first wife was beyond seas for seven years before his second marriage; fifthly, that it did not appear, supposing her not to have been beyond seas, but that the prisoner had been separated from her, and did not know she was alive, for seven years before the second marriage.
The court charged that if the two Clucks were believed, the prisoner had, about the year 1823, married Diadema Kidwell, in Tennessee, and *248 she was still living, and, if the marriage ceremony was performed (351) in the manner stated by them, and that was the usual mode of being married in Tennessee, there was a presumption that the marriage was valid and according to the laws of the State, unless the contrary was shown, upon the plain principle that, in a matter of so much importance as marriage, a certain mode would not be adopted and become common unless it was according to the laws of the country. Besides, the laws of Tennessee, as read in evidence, showed that this mode was according to law, and although the license had not been produced on the trial, it appeared, that the law of Tennessee, like our laws, did not declare a marriage void when there was no license, but merely imposed penalties. Upon the second point it was for the jury to say whether the name of the woman was Diema or Diadema. Then the court charged that there was not a fatal variance from the name Deadema stated in the indictment. Upon the third point, the crime of bigamy consisted not in the injury to the first wife nor in the injury to the second wife, but in the injury to society, by violating an institution, necessary to the very existence of civil life; and, although the consummation of the second marriage by connection would have been a great injury to the second wife, still it was not the gist of the offense, and it was not necessary to inquire whether it had been done or not. Upon the fourth point, the court said the evidence did not raise the question. Upon the fifth point, it was necessary that there should be an absence of seven years, and that the prisoner did not know, during that time, of his wife's existence. How these facts were was a question for the jury.
The jury found the prisoner guilty. There was a motion for a new trial because the court received testimony that was inadmissible and rejected testimony that ought to have been received, and for error in the judge's charge. This motion was overruled. There was then a motion in arrest of judgment because the indictment laid the venue of the first marriage in Tennessee. The court was of opinion that the place of the first marriage was not material, and the venue in Tennessee could be treated as surplusage, especially after verdict; for the substance (352) of the offense was that, being in the county of Surry, a married man, and his wife alive, he then and there married a second time. The motion was overruled; and the court the proceeded to pass this judgment: That the prisoner be fined $10, be imprisoned for three months, and that the sheriff bring him into court this day at 11 o'clock and brand him on the left cheek with the letter B, and that he give him thirty-nine lashes on his bare back on the Tuesday of the next county court at the public whipping post, and that he be in custody thereafter till the fine and costs are paid. From which judgment the defendant appealed to the Supreme Court. *249 It is objected on the part of the appellant that the court below erred in rejecting proper evidence which was offered in his behalf. The case states that on the cross-examination of Jacob Cluck and Daniel Cluck, witnesses examined on the part of the State to prove the first marriage of the defendant, they were asked whether the prosecutor had not paid them for coming to this State as witnesses, to which question they replied that he had not; and that afterwards the prisoner called a witness and proposed to ask him whether the said Jacob and Daniel Cluck had not told him that the prosecutor had paid them for coming to this State as witnesses. This question was objected to, and the court sustained the objection. The case does not set forth for (353) what purpose the question was asked, or on what ground it was overruled. If it was a proper question for any legitimate purpose, the refusal of the court to let it be proposed was error. It cannot be contended that the evidence offered was competent to establish the fact that the witnesses had been paid by the prosecutor; for that fact, if material, must be proved by persons testifying under the sanction of an oath, and subject to cross-examination, and could not be established by the declarations of one not a party nor a privy to the cause. But it is insisted that the evidence was receivable as having a tendency to affect the credit of those witnesses, because it showed that, as as to this fact, they had given, when not on oath, a different representation from that to which they had deposed on the trial. If the fact in relation to which these inconsistent representations were alleged to have been made had been one constituting a part of the evidence of the witnesses upon the transaction under investigation, we should not hesitate in holding that it was competent to attack the credit of the witnesses by testimony of the kind offered. It is well settled that the credit of a witness may be impeached by proof that he has made representations inconsistent with his present testimony, and whenever these representations respect the subject-matter in regard to which he is examined, it never has been usual with us to inquire of the witness, before offering the disparaging testimony, whether he has or has not made such representations. But with respect to the collateral parts of the witness's evidence, drawn out by cross-examination, the practice has been to regard the answers of the witness as conclusive, and the party so cross-examined shall not be permitted to contradict him. Of late, however, it is understood that this rule does not apply in all its rigor when the cross-examination is as to matters which, although collateral, tend to show the temper, disposition, or conduct of the witness in relation to the cause or the parties. His answers as to these matters are not to *250 be deemed conclusive, and may be contradicted by the interrogator; and in this class, we think, may be included the inquiry whether the (354) witnesses have been paid by the prosecutor for their attendance. So the court below thought, and, therefore, did receive the evidence of the witness who was subsequently offered for this purpose. But the testimony rejected was not offered to contradict what the witnesses had deposed. Had these witnesses been asked whether they had made the representations attributed to them, and on being so asked had denied the fact, then the representations might have been proved upon them, and the effect of this contradiction upon their credit would have been a fit matter to be weighed by the jury. But we hold it to be unfair to attack the credit of a witness by showing that his answer, extracted by cross-examination, on an inquiry of this character, does not correspond with some statement previously made, without first drawing his attention to such supposed statement, so as to revive his recollection thereof and afford him an opportunity, if he remembers or admits it, of giving it fully, with such explanations as the circumstances may justify. With respect to the subject-matter of the witness's evidence, he may be presumed to come prepared to testify with a freshened memory and carefully directed attention; but this presumption does not exist as to collateral matters, remotely connected with that subject-matter; and justice to the witness, and, still more, reverence for truth requires that before he be subjected to the suspicion of perjury he shall have a chance of awakening such impressions in respect thereof as may be then dormant in his memory. We hold, therefore, that the court did not err in rejecting this testimony.
It is further objected that the defendant proposed to prove by his second wife that his marriage with her had not been consummated by carnal knowledge of her body, and that the court rejected this testimony. The ground on which the court below placed the rejection of this testimony was because the defendant, by calling her as a witness, admitted that she was not his wife, and by that admission, inasmuch as the fact of the second marriage had been established, he necessarily admitted the validity of the first marriage, and of consequence the crime wherewith he was charged. We are not satisfied that this ground can be sustained, on an indictment for bigamy. The second wife, it seems, is a (355) witness either for or against her husband, simply because such second marriage is ipso facto void. Buller's N. P., 286-7. Unquestionably she is admissible as a witness against him (1 Hale P. C., 693, 661), and it is believed to be a settled principle that whenever husband and wife are admissible witnesses against each other, they are also admissible for each other. Rex v. Sergeant, Ryan and Moody, 352 (21 E. C. L., 453). *251
There are certainly cases where the fact of a second marriage being had, living a former wife or husband, does not constitute the crime of bigamy. Our statute defining the crime and declaring the punishment thereof, provides that it shall not extend to any person whose husband or wife shall continually remain beyond sea for the space of seven years together, nor to any person whose husband or wife shall absent him or herself in any other manner for the space of seven years together, such person not knowing his or her husband or wife to be living within the time. In neither of these excepted cases can the husband or wife be prosecuted for the second marriage; yet that second marriage is absolutely void. An admission of the invalidity of the second marriage is not, therefore, a necessary admission of guilt. But we hold that the testimony offered was properly rejected, because the fact proposed to be established by it was wholly irrelevant. The crime, in the language of our act, was completed when "any person now married, or who shall be hereafter married, doth take to him or herself another husband or wife while his or her former wife or husband is still alive"; and there can be no question but that this is done when the parties before the authorized minister declare that they there take each other for man and wife. Consensusnon concubitus facit nuptias. Marriage, or the relation of husband and wife, is in law complete when parties, able to contract and willing to contract, actually have contracted to be man and wife in the forms and with the solemnities required by law. It is marriage — it is this contract, which gives to each right or power over the body of the other, and renders a consequent cohabitation lawful. And it is the abuse of this formal and solemn contract, by entering into it (356) a second time when a former husband or wife is yet living, which the law forbids because of its outrage upon public decency, its violation of the public economy, as well as its tendency to cheat one into a surrender of the person under the appearance of right. A man takes a wife lawfully when the contract is lawfully made. He takes a wife unlawfully when the contract is unlawfully made; and this unlawful contract the law punishes.
It is also objected on the part of the prisoner that improper evidence was received against him. In the first place, he objects to all the evidence received tending to establish that a marriage contracted in Tennessee, with the forms and solemnities described by the witnesses as accompanying that with his former wife, was a valid marriage, according to the laws of that State. If we were to give this objection all the effect claimed by it, and to admit that the whole of this testimony was improperly received, yet the defendant would derive no benefit therefrom. The marriage was solemnized in the manner prescribed by the laws of this State, and, until the contrary appears, we must understand that a *252
marriage so solemnized would be good wherever celebrated. But, besides, it was solemnized according to the laws existing when Tennessee constituted a part of this State, laws which still exist here, and which must yet exist there, unless they have been repealed or modified by subsequent legislation. We know judicially, because it is a part of the public law of this State, that the State of Tennessee was once a territory within the limits of this State, and in 1789 was ceded to the United States, upon an express stipulation that the laws in force and use in the State of North Carolina at that time should be and continue in full force within the territory thereby ceded, until the same should be repealed or otherwise altered by the legislative authority thereof. (See act of cession, Rev. Code, ch. 299.) We must presume the continued existence of this law until the contrary is shown. But there is no doubt entertained upon the questions raised with respect to the reception of the certified copy of Tennessee from the Secretary's office. It is enacted that "in all suits wherein it may be necessary, for the decision of the case, to (357) produce in evidence the law of any of our sister States, it shall and may be lawful for either party to produce in court a copy of the law of such State, drawn off by the Secretary of our State from the copy of the laws of our sister State, deposited in his or the executive office, certified under his hand with the seal of the State of North Carolina attached, and it shall be his duty to furnish said copy when required, and such copy, thus attested, shall be held and deemed sufficient evidence of the existence of such law." Rev. Stat., ch. 44, sec. 3. It is admitted that the certificate accompanying the copy of the law of Tennessee from the Secretary's office was in all respects full and in due form; but it is contended that the act referred to authorizes the production of such copies as evidence in civil suits only, and not in pleas of the State; and further, that on an inspection of the copy certified by the Secretary it was apparent that the same was not a full copy. Now it cannot be denied that the words of the act, "all suits wherein it may be necessary for the decision of the case to produce in evidence the law of a sister State," are sufficiently broad to take in criminal prosecutions as well as civil actions. Nevertheless, as it is possible that these terms may have been used with reference to cases of the latter description only, we should not hesitate so to construe the act, if any sufficient reason were offered for assigning to it this restricted meaning. But, instead of this, we have strong grounds for believing that it was with a special view to criminal prosecutions the act was passed. It was first enacted at the session of our Legislature in December, 1823, and the avowed purpose of its enactment was to correct an inconvenience which had been proclaimed by this Court at the preceding term in a criminal prosecution. The Court there reversed the judgment rendered below against one indicted for passing *253
counterfeit money, purporting to have been issued by the bank of another State, because the statute book of that State had been received as evidence on the trial to prove the law establishing the bank. S. v. Twitty,
The remaining part of the evidence alleged to have been improperly received against the defendant is to be found in that part of the case which states that the prosecuting officer in cross-examining a witness for the prisoner, was permitted to ask him, in relation to his peregrinations between this State and Tennessee, whether he had not selected the night as the most opportune season for commencing his journeys, notwithstanding this question was objected to by the prisoner's counsel, because of its tendency to disparage the witness. Now, it has certainly been much disputed how far a witness shall be compelled to answer questions which without charging him with crimes, have a tendency to his disparagement or disgrace, and, although we believe that the weight (359) of authority is that the witness may be compelled to answer such questions, we feel that the subject is not free from difficulty. But we understand that there is no doubt but that such questions may be rightfully asked; and the only doubt is whether, when they are so asked, the *254 witness may decline to answer them. (See the cases referred to 1 Star. on Ev., note to 172.) We hold, therefore, this objection unsupported.
An exception was also taken because of an alleged misdirection of the jury on the subject of a variance between the name of the lawful wife, as stated in the indictment, and her true name, as proved by the witnesses. It is charged in the indictment that the defendant married one Deadema Kidwell, spinster, and that, afterwards, and while the said Deadema was alive, he took to wife one Leah Carter. The court instructed the jury that if, upon the testimony of the witnesses, they should believe the Christian name of the first wife was Diadema, there was not a fatal variance between the indictment and the proof, and the defendant might be convicted as charged. It is a rule of evidence that the proofs should correspond with the allegations, and where persons are described by name simply, in the allegations, evidence in relation to persons of different names cannot be considered as applicable to those so described. But it is also well established that a name merely misspelled is, nevertheless, the same name. Now, as names are to a great extent arbitrary, and to that extent are distinguishable from each other only by the combinations of the letters or syllables whereof they are composed, it becomes a difficult matter to fix the line which separates the cases of mistake in spelling the same name from those variations in spelling which constitute different names. The nearest approach to it is to be found in the rule of idem sonans, that those names shall be considered identical which sound alike. Instances of the application of this rule are of Segrave for Seagrave (Williams v. Ogle, 2 Str., 889); Benedetto for Beneditto (Abuthol v. Beneditto, 2 Taun., 401); Whineyard for Winyard (Rex v. Foster, R. and R., 412); and of Anny for Anne (360) (S. v. Upton,
PER CURIAM. No error.
Cited: Edwards v. Sullivan,
(361)