52 Miss. 84 | Miss. | 1876
delivered the opinion of the court.
The plaintiff in error was convicted of the crime of bigamy. The contest, as usual in such cases, was as to the proof of the first marriage. We think it was most conclusively established. The minister who solemnized the rights testified to the fact-and produced the marriage license with his certificate of the performance of the ceremony indorsed thereon. .
It is objected that,_ according to his own testimony, he was not properly ordained, as was shown by the testimony of another minister of the same faith. ' -'
It is well settled that his open claim of being a. minister,
The first wife was known by two names. She was styled in the marriage license Maria Draper. She was married as Maria Calvert, was usually so known, and was so named in the indictment. It was sufficiently proved that she was one and the same person. Nor was any injustice done defendant by the rulings of the court on this subject.
The jury were charged that “if the defendant married the first time any woman going by the name of Maria Calvert, who is shown to be now living, then the identity of said first woman need not be further shown than that she was the person actually married, be her name whatever it may.”
The jury were thus correctly instructed that it was the identity of the person, and not the name, that was submitted to them. The jury were further charged that a marriage was good without any ceremony, and by the mere consent of the parties, if the parties intend marriage, and that intent sufficiently appears. This instruction is deficient in not adding that such consent and intent must be followed up by actual cohabitation thereunder as man and wife. The error was wholly immaterial in this case, however, as there was full proof both of a valid ceremony and actual cohabitation.
It was made ground for the motion for a new trial in the court below that one of the jurors, who had been the former master of the defendant, stated in the jury-roonr that he knew the accused had at least three wives. This was made to appear by the affidavit of a party to whom this juror told it after the conviction, stating at the same time -that this statement by him to the jury had produced the conviction. However improper it may be for jurymen to discuss in their deliberations anything outside of the testimony, it would be erecting too high a standard, and would result in a defeat of justice, to set aside their verdicts because they will do so. The surmise of the juror in this case, that the fact stated by him had caused the conviction, could not of course be considered by the court.
It appears that the district attorney had a lot of printed instructions on the subject of reasonable doubts. One of these printed copies was given by the court to the jury. Its admirable statement of the doctrine tempts us here-to- set it out: -
‘ ‘ The defendant is presumed to be innocent until he is proved to be guilty, and this presumption extends to the whole crime charged against him — innocent of the overt act, innocent of the felonious intent, innocent of the whole crime, and innocent of all its parts ; and the guilt of the accused must be fully and conclusively established to a moral certainty. No prepon-der anee of evidence, nor weight of preponderant evidence, is sufficient to warrant conviction unless it is so convincing as to generate full belief, to the exclusion of'every reasonable-doubt. But reasonable doubt is not vague conjecture, nor mere supposition or hypothesis, but it is such doubt as reasonably arises out of the testimony — a doubt for which a reason can be given.
“ Mathematical or demonstrable certainty is not required. While the testimony should be equal to that which controls and decides the conduct of men in the highest ■ and most important affairs of life, all that is required to enable a jury to return a verdict of guilty is, after a comparison and consideration of all the testimony, to believe conscientiously that it establishes the guilt of the defendant as charged.”
At the bottom of- this printed charge the district, -attorney had written in pencil these words : : “ This is among, a people of loose ways ;• try to elevate your race.” It is conceded that the printed copy upon which these words had been written was unintentionally given to the jury. The words were probably intended as affording the suggestion of a point to be'elaborated in oral argument. It is insisted, however, that inasmuch as the accused was a colored man, and a number of his own race were on the jury, the words were liable to be mistaken by the jurors for a portion of the charge, and as constituting a judicial exhortation to convict the prisoner for the good of their
Judgment affirmed.
