State v. Horn

| Vt. | Feb 15, 1870

The opinion of the court was delivered by

Peck, J.

The paper pui-porting to be a marriage certificate of a marriage in the State of Pennsylvania, admitted against the objection of the respondent, was incompetent evidence and ought to have been excluded. It did not prove itself. Aside from the certificate there was no evidence that there was any such man as Benjamin Jay who was a justice of the peace, or that by the laws of Pennsylvania a justice of the peace has authority to solemnize marriages. The case states that the presiding judge stated to the jury, in his charge, that of his own knowledge justices of the peace by the laws of Pennsylvania had such authority, but that is not proof. The laws of other States, when material to the merits of a case, cannot be established except by legal evidence, and if statute laws, they must be proved by the production of the statute. If a justice of the peace has such authority by the laws of Pennsylvania, it is to be taken to exist by statute. There was no legal evidence of the handwriting of any Benjamin Jay to the certificate, and most clearly was there no legal proof of the handwriting of the Benjamin Jay by whom the certificate purports to be signed. It appears the only evidence, to prove the signature of Benjamin Jay to the certificate, was the testimony of Hugh Henry, who acted for the State in the proceeding before the justice against the respondent; who testified that soon after the justice court he wrote a letter on the subject of said marriage, to the address of Benjamin Jay, of Scranton, and received a reply thereto, signed by that name, and that the said certificate and signature is in the same handwriting as said reply ; and that he did not know such a man, and had no other knowledge of his handwriting. The only thing in this testimony that has the semblance of evidence, is the opinion of the witness that the signature of the certificate and the signature of the letter he received were the same handwriting, judging of course only by comparison. It is an essential part of the rule that admits the comparison of handwriting as evidence to prove a disputed signature, that the genuineness of the standard, with which the disputed-signature is to be compared, must be either admitted, or directly and very clearly proved. There is no such proof, if any at all, that Benjamin Jay signed the letter, as to justify setting that signature up as a standard by which to judge of the genuineness of the signature of the certificate. This being so, the case of Commonwealth v. Morris, 1 Cush., 391, is a full authority against the ruling of the county court admitting the certificate. It was held in that case that such certificate unauthenticated was not evidence, and that it received no- additional weight by coming from the custody of the woman alleged to be the wife of the respondent. That decision was made under the Massachusetts statutes of 1840 and 1841, which go quite as far in modifying the strict rule of the common law, by allowing marriage to be proved on the part of the prosecution by circumstantial and presumptive evidence, as our statute does. When circumstances are relied on as proof of a disputed fact, the circumstances must still be proved by competent evidence. It is true, the case states that this testimony of Henry was received without objection, but as it proves nothing, it does not render the certificate, which was objected to, admissible.

As to the exception to the admission of the letter of the respondent, the letter, in connection with other evidence in the case, was admissible for the purpose for which it was admitted.

There are other important questions discussed in the case, which we have not noticed, as they do not come within the scope of the exceptions taken at the trial.

Judgment reversed, and new trial granted.