State v. Marvin

| N.H. | Jan 15, 1857

PeRLEY, C. J.

In cases of felony it is said that regularly no more than one distinct offence should be charged in one indictment ; and, if the objection is taken before plea, the court will .quash the indictment. If the objection is not made till after plea, the court may compel the prosecutor to elect on which charge he will proceed ; but this is only matter of precedence and disci’etion, which rests with the judge to exercise. 1 Chitty Cr. Law 253; 2 East Pl. C. 515; Rex v. Jones, 2 Camp. 132; Bemis, J., Indictment, 4.

But in point of law there is no objection to the insertion of charges for several distinct felonies of the same degree in one indictment. The same authorities, and The King v. Kingston, 8 East 41.

In cases of misdemeanor the joinder of several offences is not in general an objection in any stage of the proceedings. 1 Chitty Cr. L. 254; Rex v. Benfield, 2 Bur. 984; Roscoe’s Ev. 216.

At common law adultery is not an offence punishable in the temporal courts, but only by ecclesiastical censure ; and under our statute it is punished by imprisonment in the common gaol, not exceeding one year, and by fine not exceeding five hundred dollars. The offence is, therefore, a misdemeanor, and not a felony ; and on the authorities no objection could be made in any stage of the proceedings to joining in the same indictment several counts for several such distinct offences, and trying the defendant on them all at the same time. But in this case the defendant was in fact tried on one count only, and can have no ground to complain that he was really embarrassed in his de-fence by the circumstance that he was originally charged with two offences in the same indictment.

The statute provides that a copy of the record of any marriage, certified by a minister or justice of the peace, authorized to solemnize marriages, clerk of the people called Eriends, or town-clerk, shall be received in all courts and places, as evidence of the fact of such marriage. Comp. Laws 876, sec. 11.

It is contended that the copy of sucb record is made by the statute the best evidence, and that till it appears this evidence can not be produced, other evidence is not admissible to prove the fact of marriage, on the well established general principle that where there are different degrees of evidence, the inferior evidence can not be received until it 'appears that the best evidence is not within the power of the party. If this position be correct, the rule must be general, and applicable to the trial of all causes, civil as well as criminal; for the rule that the best evidence must be produced is general, and not confined to criminal proceedings; and the usual evidence received in civil causes, of marriage by recognition and cohabitation, would be excluded until it appeared that the statutory proof could not be produced. We can not think that the Legislature, in enacting thi3 statute, contemplated any such radical change in the law of evidence.

By the English marriage act of 26 Geo. II., chap. 88, sec. 14, marriages were required to be registered in the parish registry, and the entry in the register was held to be evidence that the persons therein named were married on the day specified, by bans or license, as the case might be ; and by 4 Geo. IV., chap. 76, the register is expressly made evidence of the marriage. 1 Phillips’ Ev. 409, 410. Yet, where direct evidence of the marriage is required, other evidence besides the register may be made by the testimony of witnesses present at the marriage, or of the parties themselves, when competent. 2 Greenl. Ev., sec. 461; and in prosecutions for bigamy it is not indispensably necessary to produce the registration of either marriage ; it is sufficient to prove the fact of marriage by a person present at the time. 1 Phillips’ Ev. 410.

In Cowen & Hill’s Notes to Phillips, it is said that the parish register is not the only evidence of the marriage. One who was present is as well qualified to speak to that fact as the register itself; for there is no principle of evidence which makes the register indispensably necessary as a higher species of proof. The object of registration is to facilitate and preserve the evidence of marriages, and not to limit or narrow the proof. 5 Cowen & Hill’s Phillips 207, 208 ; and this we think is the true view of the question.

The objections to the qualification of the clergyman who performed the marriage ceremony are not insisted on, and can not prevail.

Harmon Burt was a witness to the fact that the defendant committed the crime charged in the indictment, with his wife, Catherine Burt. He testified without objection, that he cohabited with his wife for some five years after their marriage, which would be down to the time or near the time when the offence was alleged to have been committed. If it had been left to be inferred that he still continued to cohabit with her, it would have a tendency to throw discredit on his testimony; it would have been open to argument, that, if he had known of his wife’s adultery, as he testified, he would not have continued - to live with her as an innocent woman. There would have been a sort of practical inconsistency between his story and his conduct, calculated to detract from the weight of his testimony.

As a general rule, the relation in which a witness stands to the parties and the cause, is proper to be shown, as affecting the credit due to his testimony. In this case it was material that the jury should know — at least, it was proper that they should know — that the witness was the husband of Catherine Burt, with whom the defendant was alleged to have committed the crime for which he was tried ; and if so, it could not be improper that they should also know whether he cohabited with her or lived separate. This objection must be overruled.

The evidence went to show that the defendant and Burt’s wife met at Bundry times in a barn belonging to the defendant. There was nothing to show that they had occasion to meet there for an honest and innocent purpose. A suspicious intimacy of this sort is competent evidence, on trials for this offence, though it does not apply directly to the 'particular fact charged as the foundation of the prosecution. The other evidence went to show that at other times the defendant had met Burt’s wife at the bam. She was then near the barn, with appearances upon her dress which had a fair tendency to show that she had then recently been in the barn. This was competent evidence to show that she had been in the barn; and, taken in connection with the other evidence, that she had been there for the purpose of meeting the defendant, as she had done in other instances proved by the other evidence, and the appearance of her dress, would also have a tendency, perhaps slight, to prove that the object for which it was alleged that she went there had been accomplished.

Her going to the barn would be a fact, and not a confession ; so the appearance of her dress would be a fact, and not a confession.

The appearance of her dress was evidence that she had been in the barn. Her going to the barn was part of the evidence which went to show an improper intimacy between her and the defendant, and the evidence was, we think, properly admitted.

Judgment on the verdict.