46 N.J.L. 432 | N.J. | 1884
The opinion of the court was delivered by
The defendant was indicted under section 82: of the act for the punishment of crimes, for the abduction and seduction of a girl under the age of fifteen years. He was found guilty and sentenced to the state prison for the term of
There was no error in the admission of this witness to testify. If she had, in her examination, admitted that she was the wife of the defendant, and that his allegations were true, a different question might have arisen under the statutes of the State of New York, where it was claimed the ceremony of marriage took place; but she denied them, and whether they were married or not was a disputed question in the cause. The court did right, at that stage of the trial, in accepting her statements on the voir dire for the purpose of allowing her to be sworn in behalf of the state against the defendant. It would be a petitio principii to assume, on a bare allegation, that she was the wife of the defendant, and therefore disqualified to be a witness against him, when one of the questions at issue was whether there was ever a valid marriage between them. He was undoubtedly a competent witness, by statute, to prove his defence, and there was therefore the greater reason why the state should not be deprived of her testimony. The contrary rule would exclude the most im
It is only where there has been a valid marriage that the parties are excluded from giving evidence for or against each other by the common law. Bos. Orim. Ev. 124; 1 Oreenl. Ev., § 339; Whcirt. Orim. Ev. 390. It has therefore been held in indictments for bigamy, after proof of the first marriage, that the second woman married is a competent witness against her husband, for the second marriage is void and she is no wife. To test this competency the woman may be examined on the voir dire as to this void marriage. Whart. Orim. Ev., §§ 395-397; 1 East P. O. 469; Seeley v. Engell, 13 N.T. 542.
Courts have even gone further and held that on the trial of an indictment for the forcible abduction and marriage of a woman, under the statute prohibiting such marriage, she may be a witness for the crown, and that this is not a case within the general law excluding the testimony of a wife against her husband, for she is not legally his wife, a contract of marriage, like any other contract; obtained by force, having no obligation in law. Brown’s ease, Vent. 243; Fulwood’s case, Cro. Car. 483; Rex v. Wakefield, 2 Lewin C. C. 279; 1 Hale P. C. 301; 2 Hawk. P. C., ch. 46, § 78; 2 Russ. Cr. 984.
Our statute enacts that every such marriage, as therein described, of any woman child within the age of fifteen years shall be void if the man contract matrimony with her without the consent of her father, mother or guardian. In any view that may be taken of the alleged contract of marriage and the acts attending and following it, it is evident that there are some facts to which she must necessarily testify to prevent this statute, intended for the protection of parents and their young female children, from becoming useless. The court were right
The second point of exception that was argued by counsel was that the court charged in effect, among other things, that if the jury found that the defendant brought the girl to Jersey City, and there detained her either by force or by persuasion, it was such an unlawful conveying and taking away within this state as is contemplated by the statute. This instruction was-correct. A girl, within the protection of the statute, is in the-possession, custody or governance of her parent or guardian though she be not in the same house with them. If not in their actual possession when in the streets, in school or in some place of public resort, or visiting in the house of friends, she is so constructively. She is still in their custody for care, keeping and security, and under their governance, for they may control her will by their command. If she go upon a journey, they may follow her and direct her return to them. The mere fact that she entered another state does not alter her relations or obligations with her parent or guardian. Whenever the defendant, with the intent set out in the statute, interposed his will or persuasion between her and her guardian’s control, so as to overcome her purpose and intention to return to her home, the abduction is accomplished. Nor can her willingness to come to this state with him take away his offence, for, by our statute, he can give no consent, and whenever she intends to return to her guardian, he may not dissuade or oppose her. In this sense I understand the words used by the court in Regina v. Mycock, 12 Cox C. C. 28, where-it is said that a girl who is away from her home is still in the custody or possession of her father if she has the intention of returning to him. Baron Bramwell, in Regina v. Olifier, 10 Cox C. C. 402, says, “ If, finding she has left her home, he [the defendant] avails himself of that to induce her to continue away from her father’s custody, in my judgment he is guilty if his persuasion operated on her mind so as to induce her to leave.” Nothing can be plainer in this case than that his persuasion induced her to leave her home in Astoria and come-
The judgment is affirmed.