James Gahagan pl'ff in error vs. The People def'ts in error, 1 Park. Crim. Rep. 378

By the Court, Parker, J. — The rule is not controverted as laid down in Kent (2 Kent’s Com. 53) and in other elementary writers, that marriage may be inferred from continual cohabitation and reputation as husband and wife, except in cases of civil actions for adultery or in public prosecutions for bigamy and adultery, when actual proof of the marriage is required.

But it is contended that the admissions of the defendant are of such a positive character as to be properly received to establish his marriage, even in the cases above excepted, and the decisions have been conflicting upon the questions, whether such declarations are admissible, and if so, whether they are sufficient, when deliberately made, to establish the fact of marriage. In Maine such evidence has been received.

Cayford’s case (7 Greenl. 57) was an indictment for lewd and lascivious co. habitation, and confessions of having been married in England were received as sufficient proof of the fact; and in Ham’s case (2 Fairf. 391) it was held, that on the trial of one indicted for bigamy, adultery, or lascivious cohabitation, the marriage, whether solemnized in that state or otherwise, might be proved by the deliberate confession of the defendant. Both these cases are cited and approved in The State v.

Hodgkins (19 Maine R. 155.) The same doctrine was held in Pennsylvania, in Murtagh’s case, (1 Ashmead, 272,) which was an indictment for bigamy, and in Forney v. Hallacher, (8 Serg. & Rawle, 159,) which was an action for crim. con.; and in Virginia, in Warner’s case, (2 Virg. cases, 95,) which was an indictment for bigamy — in South Carolina, in Britton’s case, (4 McCord, 256,) and Hilton’s case, (3 Rich. R. 434,) both of which were indictments for bigamy — in Ohio, in Wolverton’s case, (16 Ohio, 173,) which was also an indictment for bigamy. In Regina v. Simmonsto, (1 Carr. & Kirwan, 167; 47 Eng. Com.

Law,) which was also an indictment for bigamy, it was held in England that the first marriage might be proven by the admissions of the prisoner. A different rule is well established in other states. In Massachusetts, such evidence is held to be insufficient. In the case "of The Commonwealth v. Simeon Littlejohn and Margery Barbarick, (15 Mass.

R. 163,) indicted for lewdly and lasciviously . associating and cohabiting together, the latter being alleged to be the wife of Thomas Barbarick, a sister of said Thomas testified that about twelve years previous, said Thomas and Margery left the house of the witness for the declared purpose of going to the house of a clergyman, about two miles distant, in order to be by him joined in marriage; that after an absence sufficient for that purpose they returned, declaring that they were married, and that they lived together as man and wife, having several children, until a year previous to the trial.

The jury found the defendant guilty, but it was resolved by the whole court that the evidence was insufficient; that it was not the best of which the case admitted; that if those persons were married, it could be proved by the record of Ihe clergyman, or, at any rate, by the testimony of persons actually present and the \ erdict was set aside. The evidence introduced to prove marriage in that case was very much like that in the case before us. It was decided in the state of Connecticut, in Roswell’s case (6 Conn.

R. 446), which was an information for incest alleged to have been committed by the prisoner with his legitimate daughter, that an actual marriage between the prisoner and such daughter’s mother must be proved; and that, for that purpose, neither cohabitation, reputation, nor the confessions of the prisoner were admissible. In that case, the subject was very fully and carefully examined, in the opinion of the court. See also Swift’s Ev. 140; Swift’s Dig. 501, for the law in that state. In this state, as early as 4 Johns. Rep. 51, it was held in Fenton v.

Reed, that strict proof of actual marriage was only .required in cases of bigamy and in actions for criminal conversation; and that in other cases, marriage might be proved from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage might be inferred. In The People v. Humphrey, (7 Johns. R. 314), the question came directly before the supreme court in an indictment for bigamy. The prisoner had been found guilty on his voluntary acknowledgment of his former marriage. But the court held it insufficient evidence, citing Morris v.

Miller, (4 Burr. 2056,) where Lord Mansfield held, that in prosecutions for bigamy, as well as in actions for crim. con., a marriage in fact must be proved, and Birt v. Barlow (Doug. 171.) The correctness of this rule is recognized in the opinions delivered in the late case of Clayton v. Wardell (4 Comst. Rep. 230.) Whatever, therefore, may be the rule of evidence in other states, I think we are bound in this state by the decision in The People v. Humphrey, which is directly in point.

In one respect the decisions agree, viz., that public prosecutions for bigamy, incest and adultery, and the single civil action for crim. con., all stand, on the same footing, and are governed by the same rule of evidence. If admissions are adequate evidence in one, they are in all of these cases. It has not been decided in this state, that confessions of the marriage are not admissible, but that they are insufficient to prove the fact.

I do not see upon what principle they can be excluded, and though insufficient of themselves to prove marriage, even when aided by proof of cohabitation and reputation, yet they may be important evidence, and I think they are in all cases competent. They corroborate tbe positive evidence of an eye witness to the marriage. They strengthen the proof of the identity of the parties, or of the clergyman or officei officiating; and they add to the weight and certainty of the proof whether the marriage be proved by the record or by one present.

It is the right, I think, of the party prosecuting, to avail himself of the statements voluntarily made by tbe defendant, as to any material fact in issue. But it is competent foi the court, in its vigilant care for the rights of a party, to require the highest and most satisfactory evidence of the fact in issue, especially in a criminal prosecution. In questions of title to land the parol admission of a party is not sufficient to show he has parted with real property. The law exacts the better and higher evidence of a deed.

And it is always competent, and no violation of principle, for the law to prescribe what kind of evidence shall be required to establish a fact. I see no reason for making a distinction between cases of marriage in a foreign country and marriage in this state. A careful examination of the decisions shows that none has really been recognized.

The fact is equally important to the defendant, whether alleged to have taken place here or in a foreign country, and calls for the same grade of evidence The same kind of evidence is required to prove the signature to a note executed in Ireland as if it were executed in this state, and so of every other fact necessary to be established on a trial. The peril of the defendant should not be increased, because of the difficulty of obtaining proof. That is a misfortune that should fall on the prosecution, if upon either party.

I think the court below erred in holding that there was sufficient proof of the first marriage to submit the question to the jury, and that, for that reason, the judgment of the sessions should be reversed and a new trial awarded. Judgment reversed.