Dixon v. People

• Decision Date: 13 April 1869
• Citation: 18 Mich. 84
• Court: Michigan Supreme Court
• Parties: George Dixon v. The People

18 Mich. 84

George Dixon v. The People

Supreme Court of Michigan

April 13, 1869

Heard January 7, 1869 [Syllabus Material] [Syllabus Material]

Error to Branch circuit.

The plaintiff in error was tried and convicted in the court below for the murder of his son, James Dixon.

On the trial, the prosecution offered as a witness one Henry S Dean, who testified that he was a justice of the peace; that he knew Harriet Dixon--claimed to be the wife of defendant; that he married her in 1857 or 1858 to a man bye the name of Phelps or Phillips; that he was a tall, slim man with sharp features and black hair.

The prosecution then introduced Harriet Dixon as a witness; and asked her whether she was ever married by said Dean to any other person.

This was objected to on the ground that she was the wife of defendant. The court overruled the objection. Her testimony and the subsequent proceedings are stated at length in the opinion.

Judgment of the circuit court reversed and a new trial awarded.

Shipman & Loveridge, for plaintiff in error:

1. Harriet Dixon was not a competent witness against her husband for any purpose whatever-not even to prove her former marriage: Laws of 1861, p. 169, sec. 4.

It was error in the court below to permit her to be examined as a general witness against him.

a. The rule of the common law excluding husband and wife from being witnesses for or against each other, is analogous to the rule between client and attorney: 1 Greenl. Ev., § 338. Yet, as to them, the actual relation need not exist. If the client acts under the belief that it exists, it is sufficient to exclude the communication: Smith v. Fell, 2 Curteis 6, 67; Sargent v. Hampden, 38 Me. 581; McClellan v. Longfellow, 32 Id. 494.

Why require the actual relation to exist between husband and wife?

b. On grounds of public policy, an acknowledged marriage, believed to be lawful by the parties, ought not to be disputed collaterally, nor in a proceeding where it is not put directly in issue--that an opportunity to produce all the evidence of the fact, may be had. See Campbell v. Twemlow, 1 Price 81, 89, 90; 1 Greenl. Ev., § 339.

At all events, Mrs. Dixon was incompetent so long as the legality of her last marriage was in controversy: 1 Greenl. Ev., § 339; Griggs's Case, T. Raym., 1; Scherpf v. Szadecky, 4 E. D. Smith, 110; Bull, N. P., 287.

2. It was not proven that her former husband was living at the time of her last marriage.

The Phillips described by the witness Bailey is as much like her former husband as any other "tall, slim man, with dark eyes," but no more so. As to similarity of names, see Wickersham v. People, 1 Scam. 128; Hubback on Succession, 103, 465.

3. But it does appear that her former husband was dead at the time of her last marriage.

First. By presumption. Her last marriage was March 9, 1865, and it will not be presumed that the man she married December 30, 1859, and had neither seen nor heard of since April, 1860, was then living: 1 Greenl. Ev., § 35; Mathews Presump., 29; Williams v. East India Co., 3 East, 192; Rex v. Twing, 2 B. and Al., 386; Monroe v. Gardner, Const. R., 328.

Second. By the newspaper report of his death. Hearsay is admissible to prove death: Jackson v. Boneham, 15 Johns. 226; Jackson v. Etz, 5 Cow. 314; Doe v. Griffin, 15 East, 293; Scott v. Ratcliff, 5 Peters 81; Pegram v. Isabell, 2 H. and M., 193; Jackson v. King, 5 Cow. 237; Lewis v. Marshal, 5 Peters 470; 2 Greenl. Ev., § 478, a, 478, b; Cochrane v. Libby, 18 Me. 39.

It is as much in the "ordinary course of business" for newspapers to publish deaths as market reports, yet these are admissible: Sisson v. C. & T. R. R. Co., 14 Mich. 489; C. & T. R. R. Co. v. Perkins, 17 Id.; Jewell v. Jewell, 1 How. 219.

It seems slight proof in this case would be sufficient: 2 Greenl. Ev., § 278, h.

Dwight May, Attorney-General, for the people:

1. At the trial, the people offered one Harriet Dixon as a witness, and certain preliminary questions were asked her, evidently for the purpose of showing that she was not the lawful wife of the respondent.

This was objected to, for the reason that she was his wife, and could not testify in the case without his consent: Laws 1861, § 4.

(a) The objection begs the question and assumes that to be a fact which was then in dispute.

(b) This, however, is of little consequence, because it subsequently turns out in proof, that the witness had, at the time of the pretended marriage with the respondent, a lawful husband (Phillips) then living: 2 Comp. Laws, § 3208.

The proof clearly shows this, and the court properly ruled that the witness was not the lawful wife of the respondent.

(c) If it was not for the court to decide the fact, it ruled that the witness was not the lawful wife of the respondent, and did right in submitting the question to the jury, under proper instructions.

Christiancy, J. Cooley, Ch. J. and Campbell, J., Graves, J. concurred.

OPINION

Christiancy J.:

Was Harriet Dixon--claimed by the defendant below to be his wife--properly admitted as a witness against him?

This is the main question in the case; and the defendant having objected to her introduction, on the ground that she was his wife, the question is to be decided on common law principles, the statute not affecting the case.

It appeared from the preliminary examination of the woman (which must be treated as an examination upon the voir dire: 1 Greenl. Ev., 424), that she had been married to John or Jonathan Phillips, December 30, 1859, at Green Oak, Livingston county, in this state; that he was a tall, slim man, with black hair, black eyes, and a moustache; that the last time she was Phillips was the last of April, 1860; that she had not heard from him since; that she was married to this defendant at Coldwater, Branch county, in this state, March 9, 1865, by a Methodist minister; that in 1862 she read an account in a newspaper of the death of a man by the name of Phillips, whom she supposed to be her husband; that when she married the defendant she told him her husband (Phillips) was dead, and had been dead several years; and she had lived with the defendant as his wife about three years in Branch county, up to the time of his arrest in this case.

This evidence made a very clear and strong prima facie case of a valid marriage in good faith with the defendant; since, without reference to the newspaper report, the presumption of innocence--that she would not commit the crime of bigamy by marrying the defendant while Phillips was alive--rendered it obligatory upon the court, in the absence of testimony to the contrary, conclusively to presume the death of Phillips and the validity of the marriage with the defendant: Rex v. Twyning, 2 B. and Al., 386; Williams v. East India Co., 3 East, 192; 1 Greenl. Ev., §§ 34, 35; Mathews Pres. Ev., 29.

The only evidence offered to overcome this presumption was that of Dean, the justice who had married her to Phillips, and that of Bailey; Dean did not know whether the name was Phelps or Phillips; he had seen him but once; he was a tall, slim man, with sharp features and black hair. The substance of Bailey's testimony was, that some ten or twelve years before, he had known a man in Wayne county, Michigan, by the name of John or Jonathan Phillips; that his (P.'s) father and folks lived there, and he with them, and had no other home; that he traveled much, but he did not know of his living in any other county; that he was always called John; that witness knew him for some ten years up to the time witness removed from Wayne county, some six years before this trial (which must have been about 1862). He knew nothing of any marriage of this Phillips with this woman, and had never seen her with him; but this Phillips was a tall, slim man, with dark eyes and a long nose, and that he (this Phillips) was alive and in Branch county about four years before this trial (or in 1864) and worked for witness some six weeks, and that he saw him again in the same county about two years before the trial (or in 1866).

This is all the evidence which could be claimed to have any possible tendency to show the identity of this Phillips with the former husband of this woman. And upon the hypothesis that it was competent to try the question of the validity of the defendant's marriage in this collateral manner under the particular circumstances of this case, did this evidence fairly tend to prove, the identity of the former husband of this woman with the Phillips who was shown to have been alive in Branch county in 1864 and 1866, after the defendant's marriage? Dean married this woman to a man by the name of Phillips in 1859 at Green Oak, in Livingston county, but he had not seen him...