Bonker v. People

• Decision Date: 12 June 1877
• Citation: 37 Mich. 4
• Court: Michigan Supreme Court
• Parties: William Bonker v. The People

37 Mich. 4

William Bonker v. The People

Supreme Court of Michigan

June 12, 1877

Argued April 10, 1877

Error to Wayne. (Reilly, J.) April 10.--June 12.

Criminal information under the statute against unlawful marriages. Respondent brings error. Reversed.

New trial granted.

Moore & Moore and J. L. Chipman for plaintiff in error.

Attorney General Otto Kirchner for the People.

OPINION

Cooley C. J.

The defendant has been convicted on an information which charges that

"Heretofore to-wit, on the 28th day of February, A. D. 1876, at the township of Huron, in said county of Wayne, one William Bonker, late of said township, being then and there a justice of the peace of said township, and in and for said county unlawfully did undertake to join in marriage Frank Bogart and Ann Eliza Davis, she the said Ann Eliza Davis being then and there a female under the age of sixteen years, to-wit: of the age of thirteen years, and not capable in law of contracting marriage; and the age of the said Ann Eliza Davis being then and there a legal impediment to the said proposed marriage; he, the said William Bonker, then and there and at the time he undertook to join the said Frank Bogart and the said Ann Eliza Davis in marriage, well knowing that the said Ann Eliza Davis was then and there a female under the age of sixteen years, contrary to the form of the statute," etc.

On the trial the main facts appear to have been undisputed. The girl was the daughter of one Daniel T. Davis who lived in the same township with defendant, and the two had known each other for three or four years, and had had some business dealings of no great importance. A part of that time they resided within a mile of each other, and the girls of the two families seem to have been acquainted. The girl testified that she had known defendant about four years, and the record does not show that this fact was disputed by him. At the time of the marriage she was in the employ of one Hemstock, about forty rods from and in sight of her father's house. An arrangement was fixed up between Mr. and Mrs. Hemstock and Bogart for the marriage of the latter to the girl, and the defendant coming along in the road with one Nowland, Bogart went out and called him in to marry them. When he came in he asked the girl how old she was, and she replied, sixteen. Her testimony was that she made this statement under the instructions of the Hemstocks and Bogart, but they denied this. She was in fact but thirteen years of age. Without taking any precautions beyond this simple inquiry, and without the presence or knowledge of any of the girl's family, the defendant proceeded with the marriage ceremony. These facts, it must be conceded, make out a very gross case of abuse of official authority, and it remains to see whether any of the exceptions taken to the conviction can be supported.

I. It is claimed that the information makes out no case under the statute. The information was filed under § 4729 of the Compiled Laws, [How. Stat. § 6219] which provides that "If any person shall undertake to join others in marriage, knowing that he is not lawfully authorized so to do, or knowing of any legal impediment to the proposed marriage, he shall be deemed guilty," etc. The argument on the part of the defendant is that an "impediment" is that only which absolutely precludes a marriage being formed; such as relationship within the prohibited degrees, or a previous marriage not dissolved; and that as the marriage of a party under the age of consent would not be void, but only voidable, the want of age could not constitute an impediment. This argument would apply equally well to a marriage accomplished by force or fraud,--such marriages being voidable only,--and would protect the magistrate though the facts were all known to him. We doubt the validity of the argument, and should be inclined to hold that whatever is in the way of a valid marriage must be understood to constitute such an impediment as the statute has in view. The statute authorizes certain marriages, and does not authorize others; it points out what shall prevent or impede them. But it is not necessary to rest the case upon this view, for when the statute does not authorize a certain marriage, a magistrate cannot be "authorized" to join the persons in marriage. The age of consent in a female is, by the statute, fixed at sixteen years; and though the law, in view of the serious consequences that might follow from treating all marriages as void where one of the parties is under the age of consent, holds them to be voidable only, it nevertheless does not authorize them. Like a fraudulent marriage they are unauthorized, for consent is the first requisite in marriage, and in these cases the capacity to consent is withheld by law.

II. Exception was taken to the admission of evidence to show that the families of defendant and Davis were acquainted, and that at the time of the ceremony defendant made no inquiry for the girl's parents. This evidence bore strongly on the probability of defendant's knowledge that his act was unwarranted, and we have no doubt was properly received. It tended to show that he must have had some knowledge of the girl's age, and it put before the jury the extremely suspicious circumstance that in the immediate vicinity of her father's house he was willing, without the presence, and so far as he knew, the knowledge of her parents, to join in marriage a girl, who, even if she were sixteen, would be unfit to act in so important a matter upon her own judgment.

III. The third exception was to the refusal of the court to require the prosecution to put upon the stand as witnesses for the people Mr. and Mrs. Hemstock, Bogart and Nowland. There was nothing in the case to indicate that Nowland could have given material evidence; it only appeared that he was in the road with defendant when the latter was called in; and that was no part of the res gestae. The record discloses no fact that renders it at all material that defendant was called in by one person rather than by another or what was said in calling him in, or how he came to be present. The res gestae began with his presence in the house. Evidence as to how or why he came to be there was proper as introductory or explanatory, but nothing depended on it. The claim that the others should have been called by the prosecution is made in reliance upon Maher v. People 10 Mich. 212, and Hurd v. People 25 Mich. 405. One of those cases was an information for murder, and the other for assault with intent to commit murder, and the principle deducible from them is that "the prosecutor in a criminal case is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed; especially if it appears to the court that the evidence of the other portion is attainable." "If the facts stated by [the witnesses] who are called, show prima facie, or even probable reason for believing that there are other parts of the transaction to which they have not testified, and which are likely to be known by other witnesses present at the transaction, then such other witnesses should be called by the prosecution if attainable."--25 Mich. 416, 417. These cases are really aimed at a suppression of evidence by management, and they do not decide, as is claimed, that all the...