State v. Rood

| Vt. | Feb 15, 1840

The opinion of the court was delivered by

Williams, Ch. J.

— No objection was made to the witness introduced in the county court, and it would not be proper here to enquire whether any objection could properly have been taken to him. The question is, whether, on his testimony, the jury were warranted in finding the marriage proved, which was the fact then in dispute.

It is admitted, by the attorney for the state, that in a prosecution like the one under consideration, it is necessary to prove a marriage in fact, and that reputation and cohabitation, alone, are not sufficient. It is usual to prove such marriage either by producing a copy of the register or record, when one is kept, or, which is more customary, by the testimony of a witness present at the celebration. The English and American cases agree in this doctrine. Rex v. Fielding, 5 St. Tr. 614. Commonwealth v. Littlejohn, 15 Mass. 163" court="Mass." date_filed="1818-05-15" href="https://app.midpage.ai/document/commonwealth-v-littlejohn-8255782?utm_source=webapp" opinion_id="8255782">15 Mass. 163. The proof, in the case before us, was by a witness present at the ceremony. It is not necessary^ in the first instance, to show the authority or official character of the person celebrating or solemnizing the marriage. It seems to be sufficient if the ceremony was performed by a person appearing in the official character of one duly authorized, especially if it was followed by cohabitation and recognizing each other as husband and wife. Rex v. Brampton, 10 East, 282. By the laws of the state of New York, a marriage is legal if the parties appear before a magistrate and declare their consent to a marriage, and it was not necessary to prove the law, if it was known to the court at the trial, or if it is now known to be as decided on the trial.

The evidence introduced was sufficient, prima fame, to prove a marriage in fact. The parties appeared before a magistrate, or one acting as such, and who was authorized by the laws of the state, where it took place, to solemnize a marriage, and, before him, were married. If Isaac Bishop was not a magistrate, or the laws of the state of New York, were different from what was supposed by the court, on the trial, the evidence of that should have come from the respondent, after the case was thus made out, prima facie, against him.

Judgment is to be rendered on the verdict.