State v. Patterson

• Decision Date: 30 June 1842
• Citation: 2 Ired. 346,38 Am.Dec. 699,24 N.C. 346
• Parties: STATE v. THOMAS PATTERSON.
• Court: North Carolina Supreme Court

2 Ired. 346

24 N.C. 346

38 Am.Dec. 699

STATE

v.THOMAS PATTERSON.

Supreme Court of North Carolina.

June Term, 1842.

Where a witness on the part of the State, on his cross-examination, was asked, whether the prosecutor had not paid him for coming from another State to be a witness and answered that he had not, it is incompetent for the defendant to introduce witnesses to prove his declaration that he had been so paid.

Where the fact, to which a witness deposes, constitutes a part of the transaction under investigation, then evidence of inconsistent statements by him, in relation to this fact, may be introduced to impeach his credit.

But in respect to collateral matters, drawn out by cross-examination, the answers of the witness are in general to be regarded as conclusive. The exception to this rule is, when the cross-examination is as to matters, which, although collateral, tend to shew the temper, disposition or conduct of the witness towards the cause or the parties. The answers of the witness as to these matters may be contradicted.

If a witness is asked whether he has made representations as to a particular fact and denies it, then evidence of such representations would be proper, but not in relation to collateral matters.

On an indictment for bigamy, the second wife is admissible as a witness, either for or against the prisoner.

Marriage is in law complete, when parties, able to contract and willing to contract, have actually contracted to be man and wife in the forms and with the solemnities required by law. Consummation by carnal knowledge is not necessary to its validity.

Where a marriage is solemnized in another country, in the manner prescribed by the laws of this State, the court must understand such a marriage to be good, unless the contrary be shewn.

The laws of this State, at the time of the cession of Tennessee, must be taken to be the laws of that State, until it is shewn that they have been altered or repealed.

The certificate of the Secretary of State, in relation to to the Statutes of another State, given in persuance of our Statute (Rev. Stat. c. 44, s. 3) is evidence in criminal as well as in civil cases.

Questions to a witness, tending to disparage or disgrace him, may be asked, and cannot be objected to by the opposite party. Whether the witness is bound to answer them is doubtful.

Where a person is called in an indictment by the name of Deadema, and it is proved her name was Diadema, the variance is not material.

The case of State v Upton, 1 Dev. 513, cited and approved.

Appeal from the Superior Court of Law of Surry County, at Spring Term, 1842, his Honor Judge PEARSON, pesiding.

This was an indictment for Bigamy, charging the first marriage to have been in Tennessee in the year 1823, with Deadema Kidwell, and the second marriage in Surry County in this State, in the year 1838, with one Leah Carter. On the trial, the State called Josiah Cluck, who swore that he resided in Jefferson County, Tennessee; that many years before, he could not be certain as to the time, he was present at the house of his brother Daniel Cluck, in the said County, and saw Patterson, the prisoner, married to one Diemena or Diema Kidwell; he was not certain as to her name, it was Diemena or Diema or some such name; he had no acquaintance with her, before or afterwards; knew her only as Mrs. Patterson; the marriage ceremony was performed by one Isaac Barton, an old Baptist preacher, who was now dead; he had frequently heard Barton preach, and, although not himself a member of the Baptist Church, he knew that Barton had for many years before and since preached and been recognized and considered as a regular member of the gospel; he had regular meeting houses and congregations, where he was in the habit of preaching at stated times. The witness stated that it was not a large wedding, nor a very small one; he supposed about twenty persons were present; that Barton stood up in the floor, Patterson and Miss Kidwell standing before him; Barton asked for the licence; Patterson handed him a paper; Barton said that authorized him to celebrate the marriage, and called upon all, who knew any impediment, to make it known or forever thereafter hold their peace; Barton then told the parties to join hands; asked Patterson do you take this woman for your wedded wife and will you love and cherish her and cleave to her only until death, to which Patterson assented; he then asked Miss Kidwell, do you take this man for your wedded husband and will you cherish and obey him and cleave to him only until death, to which she assented; he then pronounced them man and wife. The witness was asked, if he had witnessed any other marriages in Tennessee, and how they were celebrated. He answered that he had been married in Tennessee himself, and had witnessed many weddings there; they were all solemnized in the same way as the one described by him, and he never heard any question about their validity or lawfulness. This question and answer were objected to by the prisoner's counsel but admitted by the court. Daniel Cluck was then called, and swore that he resided in Jefferson county, Tennessee, was present at the marriage of the prisoner and Diadema Kidwell--the ceremony was performed at his house by old Isaac Barton, who was a regular baptist preacher, and had acted, and been recognized as such, for many years before and after. He gave the same account of the manner in which the ceremony was performed as the former witness gave-- and, upon being asked the same question, said he was married himself in Tennessee, and had been present at several other marriages--they were all solemnized in the same way as the marriage of Patterson and Diadema Kidwell, and he never heard that their validity or lawfulness had been questioned--he said Mrs. Patterson was his wife's sister, and he knew her christian name was Diadema--she was called by that name and married by that name--the marriage took place nineteen years ago--Patterson and his wife settled about two miles from him, and lived together as man and wife for many years, he could not say how long, but until they had five children, when they disagreed and parted--but Patterson staid in the same neighborhood four or five years after the separation, when he left the country and took the children with him--Mrs. Patterson still lives in his neighborhood, and was at his house a few days before he left home. The fact of Mrs. Patterson being alive was also proved by the witness, Jacob Cluck. Both these witnesses, upon cross-examination, were asked if the prosecutor had not paid them for coming to this State as witnesses, and replied that they had never been paid a cent for coming. The State then called one Swaim, who swore that he was a justice of the peace for the county of Surry, and as such had married the prisoner and Leah Carter, who was a single woman--the marriage was solemnized at his house in Surry on the day of , 1838--the licence was produced--he stated the manner in which he was in the habit of performing the ceremony, and in which he had married the prisoner and Leah Carter--it was the same as that described by the witnesses, Jacob and Daniel Cluck--he said the wedding took place about sunrise, and Patterson and Leah Carter started off soon afterwards. The Solicitor for the State then read a copy of the Laws of Tennessee on the subject of marriage, certified by the Secretary of State of this State, as prescribed by the statute, (Rev. Stat. c. 44, s. 3.) This was objected to by the prisoner's counsel, because, as he alleged, it appeared upon its face to be only detached sections; but it was received by the court. The Solicitor then offered to read a record of the bond and licence, certified by the record of the County Court of Jefferson county, Tennessee. This was objected to, and the objection was sustained, because, although, by the laws of Tennessee, the bond and licence are required to be filed in the office of the Clerk of the County Court, they are not made a record, which he is authorized to certify. The prisoner's counsel then called a witness, and proposed to ask him whether Jacob and Daniel Cluck had not told him that the prosecutor had paid them for coming to this State as witnesses. This was objected to and rejected by the court. The prisoner's counsel then introduced a witness, who swore that, at the last term of the court, finding Jacob and Daniel Cluck, who had attended as witnesses, out of money, he had assisted them in borrowing ten dollars to bear their expenses home, but this was not done at the instance of the prosecutor. The prisoner's counsel then called on Sammons; who swore that he had resided in Tennessee about two years, some seven or eight years ago, was well acquainted with the character of Daniel Cluck, and that he was a man of bad character. Upon his cross-examination this witness was asked, whether he had not started, when he went to Tennessee, between sun-down and sun-rise. This question was objected to as tending to make the witness disparage himself, but was allowed by the court. The witness answered that he had started after night. He was then asked if he had not started back from Tennessee between sundown and sun-rise. He said he had. The prisoner's counsel then called Leah Carter, who was alleged to be the prisoner's second wife, and proposed to ask her, whether the prisoner ever had connexion with her. She was objected to on the part of the State, and the objection was sustained by the court, because the prisoner could not examine her, without admitting that she was not his wife. The Solicitor for the State then called Joshua Carter, who swore, that, after the prisoner had married his daughter, he went out to Tennessee, and that the witnesses, Jacob and Daniel Cluck, had the character of respectable men in that country. Upon cross-examination, this witness said he could not say whether the prisoner had consummated his marriage with his...