Bird v. Commonwealth

• Decision Date: 13 November 1871
• Citation: 62 Va. 800
• Parties: BIRD v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 800

BIRD v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 13, 1871

1. On a prosecution for bigamy, where a marriage is alleged to have taken place in a foreign country or State, proof must be made of a valid marriage according to the law of that country or State; but no particular kind of evidence is essential to establish the fact, except that it cannot be proved by reputation and cohabitation.

2. When a witness testifies to a marriage in a foreign State solemnized in the manner usual and customary in such State by a person duly authorized to celebrate the rites of marriage, and the parties afterwards lived together as man and wife, this is as satisfactory evidence of a valid marriage as can be expected or desired; and in such case it is not necessary to prove the laws of such State, or to offer further evidence of a compliance with its provisions.

3. All persons who practice a business or profession which requires them to possess a certain knowledge of the matter in hand are experts, so far as expertness is required. 8 Man. Gran. & Scott, 812.

4. M proves that he is a Catholic priest and pastor of a church in Washington, D. C., and authorized to celebrate the rites of marriage; that by virtue of a license issued by the proper officer in the usual form, he married B and M, at his residence in said city, in the presence of two persons; and in accordance with the rules and customs of the Catholic Church and the laws of the District of Columbia. And it was proved that B and M afterwards lived together as husband and wife. On a prosecution of B for bigamy, this is sufficient evidence of the marriage of B and M.

5. The act of Congress continues the laws of Maryland in force in that part of the District of Columbia ceded by Maryland. The Maryland law thereby became the law of Congress in said District, and is to be taken notice of by State courts without proof.

At the July term, 1871, of the Corporation court of the city of Alexandria, Thomas H. Bird was indicted for bigamy; for this that on the 16th of January 1868, in the city of Washington, in the District of Columbia, he married Mary Broden; and afterwards, she being still living, on the 1st of March 1871, in the city of Alexandria, he married Henrietta Godwin. At the same term of the court he was tried and found guilty, and the jury fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him accordingly.

On the trial the prisoner's counsel asked for several instructions to the jury; which the court refused to give; and gave other instructions; and the prisoner excepted. The bill of exceptions sets out the facts proved, and the instructions asked and refused, and those given. From this bill of exceptions it appeared that it was proved by the Rev. P. F. McCarthy, that in the month of January 1868, the prisoner was married by him to Mary Broden, at his residence in the city of Washington, in the District of Columbia. That said McCarthy was a priest of the Roman Catholic Church, and had been for five years pastor of the church of the Immaculate Conception, in the city of Washington; and was duly authorized by the canons of his church and the laws of the District of Columbia, to perform the ceremony of marriage; that the prisoner carried to him the license issued by the clerk of the Supreme court of the District of Columbia, authorizing the marriage of the prisoner to Mary Broden; that said license was issued by the proper officer, and was in the usual form of marriage licenses used in the District of Columbia at that time; and that under the authority conferred by that license, and in the presence of Mr. and Mrs. Cooke, two witnesses of full age, he, the said McCarthy, performed the ceremony of the marriage of the prisoner and Mary Broden; that said marriage was contracted in accordance with the rules and customs of the Catholic church, and the laws of the District of Columbia. The license was on file among the archives of his church, where by the rules of his church it was required to be kept.

On cross-examination the witness stated that he first saw Mary Broden a few days before the marriage; and that she first spoke to him concerning the marriage; and that he had a conversation with her in regard to it some days before it took place. The counsel for the prisoner then asked what that conversation was. To this question the attorney for the Commonwealth objected. The counsel for the prisoner then stated, that the object of the question was, by following it up by other questions, to show that Mary Broden was a common prostitute, and that the marriage between her and the prisoner was the result of a combination and conspiracy between herself and one Cooke and others, by which it was performed against the will of the prisoner, and under duress imposed upon him. But the court excluded the question; and the prisoner excepted.

It was proved that the prisoner and Mary Broden lived together for some years before their marriage; during which time she passed by the name of Mrs. Bird: and after the marriage they lived together as husband and wife. And it was further proved, that Mary Broden was still living, and that the prisoner was legally married to Henrietta Godwin, in the city of Alexandria, in March 1871: and this last marriage was admitted on the trial.

The evidence being closed, the prisoner moved the court to give the following instructions, viz:

1st. In order to convict the prisoner, the jury must believe, from the evidence, that two marriages have been contracted by him, according to all the forms of law of the places where they have been celebrated; and if either of them was performed outside the State of Virginia, in another State or country, then the law of such State or country must be shown to the satisfaction of the jury, and that all the requirements of that law have been complied with in such marriage.

2d. The jury are judges of the law as applicable to the case, in all matters, except wherein they are instructed by the court as to what the law may be.

3d. The law of the country or State where the first marriage is shown to have taken place, must be proved to the satisfaction of the jury, by competent testimony.

4th. The mere assertion of a minister of the gospel, that a marriage license was issued according to the law of the country where such marriage was celebrated, is not sufficient evidence of what the law may be.

The court, because the evidence of the legality of the marriage in the District of Columbia was not objected to when it was introduced; and because the acts of Congress of a public nature applicable to said District, are matters of judicial cognizance, and are not required to be proved as matters of fact to the jury, and for other reasons, refused to give these instructions; and instructed the jury as follows:

1st. If the jury believe from the evidence, beyond reasonable doubt that the prisoner was married in the city of Washington, D. C., to Mary Broden, according to the law prevailing in said city at the time of said marriage; and that...