Weinberg v. State

| Wis. | Jan 15, 1870

Paine, J.

The plaintiff in error, having been indicted for bigamy, was, under the rulings of the circuit court, convicted. Without attempting to pass upon the many questions discussed, we think the judgment must be reversed for error in one of the instructions to the jury.

The first marriage was alleged to have taken place in the kingdom of Prussia. And all the proof as to the law there in force tended to show, that, to constitute a valid legal marriage, it must be entered into as a civil contract before the civil magistrate. The proof also tended to show that after the performance of this civil ceremony, which constituted the legal marriage, it was quite common for parties to have such a religious marriage ceremony, in addition, as they might choose ; but the celebration of such religious marriage by any person, without the civil marriage having been first performed, was prohibited under severe penalties.

It was not denied that it was necessary for the prosecution, in order to sustain a conviction, to prove that the first .was a valid legal marriage according to the law of the place where celebrated. The authorities cited by the counsel for the plaintiff in error establish that proposition. But there was no proof in this case tending directly to show the performance of the civil marriage ceremony. The only ceremony of which there was direct proof was a religious one, performed according to the custom of the Jews. And on this the court instructed the jury, in effect, that if they were satisfied of the identity of the parties — about which there was some question — and of the performance' of the religious ceremony, and that by the law the Jewish priest was liable to severe penalties for performing that, unless the civil marriage had previously taken, place, they would be authorized to infer that it had previously taken place according to law.

This seems to us to have been error. The one fact has no inherent natural tendency to prove the other. There is no necessary logical connection between them. Either one might well have occurred without the other. The only ground for inferring the civil 'from the religious marriage is the presumption that the Jewish priest would not have performed the latter unless the former had taken place. But this is hardly compatible with the strictness required in proving the essential facts in a criminal prosecution. Where the law requires proof of an actual legal marriage, it cannot be permissible to prove it by merely showing some other act performed by another person, and which he was forbidden under penalties to perform unless the actual marriage had previously taken place. The utmost effect of such evidence would be to create the presumption that the priest would not have violated the law of the country where he acted. Of course, if he had been prosecuted there for such violation, that presumption would have existed in his favor. Perhaps, under the justly liberal rule in respect to proof of foreign marriages, in civil suits, it would also' be allowed to prevail. But to give it that effect in a criminal prosecution would be to overcome the presumption of the prisoner’s innocence by the no stronger presumption of the innocence of a stranger, and that in a proceeding in which such stranger was not on trial. This is not consistent with the strictness required in criminal prosecutions. In these there must be proof, either direct or circumstantial, having some intrinsic tendency to establish the facts showing guilt.

To illustrate : suppose it became necessary in a criminal case to prove a valid marriage under our statute. It authorizes certain civil and religious officers to perform the ceremony. It forbids all others from doing so under severe penalties. Would it be sufficient, in such case, for the prosecutor to show that the ceremony was performed by some person, without any proof whatever that he was an authorized person, and then tell the jury, that, inasmuch as he was’ liable to penalties if he performed the ceremony without, they might find, from the fact that he had performed it, that he was authorized ? This would hardly be claimed. And yet it would be entirely similar in principle to the rule adopted in this case. If the court had fairly submitted to the jury, upon the whole evidence, including the admissions of the defendant, the question whether the civil marriage had been performed, it may perhaps be doubtful whether the verdict could have been disturbed ; though there would still have been the question whether his admissions would have been sufficient, within the rule established in West v. The State (1 Wis. 309), to justify a conviction. The fact that a religious ceremony had 'actually been performed, might, ' even though the admissions should clearly imply a marriage ceremony as indicated by that case, still leave room to suppose - that the ceremony referred to was the religious one, which would have no validity in law. This possibility seems to show that there is some force in the arguments of those courts which hold that admissions ought not to be held sufficient to warrant a conviction in such cases, because they involve matter of law as well as of fact. People v. Lambert, 5 Mich. 366 ; State v. Roswell, 6 Conn. 451. Bnt we stall not attempt to decide, at this time, upon the nature or effect of these admissions.

Upon a point of practice, this case is in the same condition as that of Bennett v. The State, 24 Wis. 57" court="Wis." date_filed="1869-02-15" href="https://app.midpage.ai/document/bennet-v-state-6600163?utm_source=webapp" opinion_id="6600163">24 Wis. 57. There having been no final judgment, a writ of error would not lie; but as one was issued irregularly, and the exceptions were certified as a return to it, we have considered them, and will remand the case, with directions to the circuit court to grant a new trial for the misdirection of the jury.

By the Court.— So ordered.