14 N.H. 480 | Superior Court of New Hampshire | 1843
The facts stated in this case, render it necessary to inquire how far a witness whose testimony has been impeached by evidence that he has made contradictory statements in relation to the same transaction, may be permitted, on his reexamination, to give Ms statement of the conversations in which the contradictions of his present testimony are said to have been made. Holmes, a witness for the state, testified to a certain transaction. The prisoner then introduced three witnesses, Foss, Locke and Avery, whose testimony tended to prove that Holmes had given accounts of that transaction inconsistent with the truth of his testimony. All these witnesses related conversations between themselves and Holmes. Holmes was then re-called by the attorney general, and was asked what he said to Foss, to Locke, and to Avery, on the several occasions to which their testimony referred. This was objected to, but was permitted by the court to be put, the court ruling that Holmes might state all the conversation ho had with these witnesses,
The other question in the case relates to the evidence of the marriage. In civil actions, evidence of cohabitation, reputation, &c.,is sufficient; but in indictments for bigamy, and in actions for criminal conversation, there must be proof of an actual marriage. Morris vs. Miller, 4 Burrow 2059; Birt vs. Barlow, Dougl. 171. In this case there was a marriage in fact. Andrew Welch, the husband of Betsey Welch, testified that he was married to her in the month of July, 1822, and for this purpose he was a competent witness. There must be proof of the identity of the party, even if a copy of the record be produced. Wedgewood’s case, 8 Greenl. 75; The State vs. Wallace, 9 N. H. Rep. 515; Commonwealth vs. Norcross, 9 Mass. 492. In The State vs. Kean, 10 N. H. Rep. 347, on the trial of an indictment for bigamy, evidence was offered that the prisoner was married to one Olive McKusic, by Timothy Remick, a resident in the town of Cornish, in Maine, who had for some time officiated as a minister at Cornish, where the marriage took place. It was objected that the evidence did not prove that the marriage was solemnized by any person authorized to do so by the laws of this state. But it was said by the court that the exception could not prevail. “ There was a marriage in fact, and that is sufficient.”
It does not appear to be laid down what is a marriage in fact. In Morris vs. Miller, 4 Burr. 2059, Lord Mansfield says, “ we do not at present define what may or may not be evidence of a marriage in fact." In that case he had just said that “ in an action for criminal conversation, there must be evidence of a marriage in fact; acknowledgement, cohabitation and reputation, are not sufficient.” Upon the argument, and before the judgment of the court was pronounced, he had said, “proof of actual marriage is always used and imderstood in opposition to proof by cohabitation, reputation, .and other circumstances from which a marriage may be in
Proof of a marriage, then, may be made in various ways, according to the nature of the proceeding in which the proof is required. In all civil actions, excepting that for criminal conversation, it may be inferred from those circumstances which generally accompany a marriage, such as acknowledgement, reputation, cohabitation, Sec. But in criminal prosecutions, like indictments for bigamy, adultery, Sec., direct evidence of the marriage is required, and this may appear from the testimony of witnesses who were present at the ceremony. This constitutes proof of a marriage in fact, and is merely direct evidence of the marriage, as contradistinguished from cohabitation, &c., which is indirect evidence of the marriage.
The marriage now in question was solemnized before Elder Nathaniel Berry. The evidence showed that he had been a preacher for twenty-five years. It did not appear when he was ordained, but he had united persons in marriage as many as sixteen years ago, at the time of the trial, which was in August, 1841. One of the witnesses had seen a certificate containing evidence of his ordination. We are of opinion that this was competent evidence prima facie, that he was an ordained minister, as required by the act of 1791, N. H. Laws 172, Ed. of 1830, at the time the ceremony was performed, in July, 1822. In Londonderry vs. Chester, 2 N. H. Rep. 276, it is said by the court, “the minister in this case was an acting minister; he was in the
Judgment on the verdict.