10 N.H. 347 | Superior Court of New Hampshire | 1839
The evidence offered to show the first marriage of the respondent was by a witness who was present at the time of the marriage, and who testified that it was solemnized at Cornish, in the state of Maine, and that the settled minister of Cornish officiated in the services on that occasion. The witness testified that the same clergyman officiated in the marriage services of the witness, and that he had also been present at several other marriages at Cornish, when the marriage ceremony was performed by him. There was farther evidence showing a cohabitation of some years subsequent to this marriage.
In many cases, long continued cohabitation as husband and wife is prima facie evidence of marriage. 9 Mass. R. 414, Newburyport vs. Boothbay; 7 Johns. 314, People vs. Humphrey; 18 Johns. R. 346, Van Buskirk vs. Claw. A copy of the record of the certificate, however, of the person by whom the ceremony is performed, is the evidence which is most ordinarily offered of a marriage. But this evidence is in no case indispensable. In Commonwealth vs. Littlejohn, 15 Mass. R. 163, which was an indictment for lascivious cohabitation, it was holden that the marriage of one of the parties might be proved either by the record of the minister
In the case before us, the marriage was in another government, and the rule as settled in England in such cases is that the marriage may be proved by any person who was present at the ceremony, provided that such circumstances are also proved from which the jury may presume that it was a valid marriage according to the laws of the country in which it was celebrated. Proof that the ceremony was performed by a person appearing and officiating as a priest, and that it was understood by the parties to be the marriage ceremony, according to the rites and custom of the foreign country where they were residing at the time, is presumptive evidence of marriage. 10 East 282, Rex vs. Brampton; 2 Stark. Ev. 938.
Under these authorities the evidence of the marriage offered in this case is clearly sufficient.
The objection to the evidence showing a second marriage is, that it does not appear that it was solemnized by any person authorized to do so by the laws of this state. This exception is founded on the statute of 1791, (1 Laws N. H. 172) which provided that every ordained minister of the gospel, in the county where he is settled, or hath his permanent residence, and in no other place, is empowered to solemnize marriages ; but this restriction is withdrawn by the act of December 12, 1832. By that act, every regular ordained minister of the gospel, residing in this state, and in regular standing with the denomination to which he belongs, is authorized and empowered to solemnize marriages in any county within the state, after having caused the credentials of his ordination to be recorded in the office of the clerk of
The obligation of causing such record to be made is directory upon the minister, and may be presumed to be complied with, until the contrary is shown. The case is silent upon that point. As the facts now appear, the exception cannot prevail. There was a marriage in fact, and that is sufficient.
Motion is also made in arrest of judgment, for the reasons that the offence is not alleged in the indictment to have been committed with force and arms ; that the indictment contains characters and abbreviations instead of words ; and that it does not conclude, as required by the constitution, “ against the peace and dignity of the state.”
Courts hold to a high degree of strictness in pleadings in criminal cases; but this strictness has been much relaxed from the earlier decisions. It is very questionable, however, whether under any former decisions the exceptions here taken would prevail. Hawkins says, in his Pleas of the Crown, that the words, vi et armis, are necessary in indictments for of-fences which amount to an actual disturbance of the peace, as nuisances, assaults, &c., but that they were never necessary where it would be absurd to use them, as in indictments for conspiracies, slanders, cheats, escapes, and such like. 2 Haw. P. C. ch. 25, § 90.
The abbreviation complained of in the indictment is the writing of the original name of the former wife, as McKusic ; but this has become the more ordinary spelling, or at least writing of names with such a prefix, and custom must govern in this respect.
The indictment concludes, “ against the peace and dignity of our said state,” instead of, “ the peace and dignity of the state,” as required by the constitution. It is unnecessary for us to determine here how far a departure from the precise words required by the constitution would be admissible in indictments. We are satisfied, however, that a departure to this extent from the words, “ the state,” to “ our said state”—
Judgment against the respondent.
