Com. v. Hayden

• Decision Date: 21 May 1895
• Citation: 163 Mass. 453,40 N.E. 846
• Parties: COMMONNWEALTH v. HAYDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 453

40 N.E. 846

COMMONNWEALTH v. HAYDEN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1895

COUNSEL

M.J Sughrue, for the Commonwealth.

C.P Sullivan and F.F. Sullivan, for defendant.

OPINION

BARKER J.

1. Special police officers are not exempt from service as grand jurors. Pub.St. c. 170, § 2. Nor does the fact that a juror is exempt absolutely disqualify him from service. He may be excused at his own election, or may be excepted to by any party; but, if he serves, the action of the grand jury or traverse jury is not made void. Munroe v. Brigham, 19 Pick. 368. See, also, Wassum v. Feeney, 121 Mass 93; Moebs v. Wolffsohn, 143 Mass. 130, 8 N.E. 892.

2. There is neither authority nor reason for the contention that the indictment was void because one of the grand jurors appeared as a witness before the grand jury of which he was a member, at the same sitting of the court at which the indictment was presented. A grand jury may properly act upon the personal knowledge of any of its members, communicated to his fellows under no other sanction than the grand juror's oath. Com. v. Woodward, 157 Mass. 516, 32 N.E. 939. And there is no impropriety or wrong to the accused in having a grand juror, who has personal knowledge as to matters inquired of by his grand jury, sworn, and testify as a witness. Indeed, there may, under our practice, be some incidental benefit to the accused in that course, as in that case his name will be found in the list of witnesses which is to be filed of record by the clerk. Pub.St. c. 213, § 9.

3. The motion to dismiss, by which alone the two questions above considered were raised, must also have been overruled, for the technical reason that neither of the facts alleged in it as avoiding the indictment appeared upon the record of the cause, and so could not be availed of by a motion to dismiss. Com. v. Fredericks, 119 Mass. 199. 204, and cases cited.

4. As the writing purporting to be a letter written and signed by the defendant was identified as his handwriting, it was competent evidence against him. Stone v. Sanborn, 104 Mass. 319, 324; Wiggin v. Railroad Co., 120 Mass. 201.

5. The testimony of the woman with whom the defendant was accused of having unlawfully intermarried while his former wife was living was competent to prove the unlawful marriage. The testimony of witnesses present at a marriage is competent to prove it (Com. v. Norcross, 9 Mass. 492; Com. v. Littlejohn, 15 Mass. 163); and this must be held to include the testimony of either of the contracting parties.

6. The attested copy of the record of the marriage of the defendant to Annie Dillon, from the records of the city registrar of Boston, certified to by the assistant registrar, was admissible in evidence. The records of town clerks relative to marriages are made by statute prima facie evidence in legal proceedings of the facts recorded, and a certificate signed by the clerk is made admissible as evidence of the record. Pub.St. c. 32, § 11. See, also, Pub.St. c. 145, § 29. Towns and cities of more than 10,000 inhabitants may choose a person other than the clerk to be registrar, and in that case the provisions concerning clerks apply to the registrar. ^[1] By St.1885, c. 266, § 5, the city registrar of Boston has power to appoint his own subordinates. General authority to make ordinances concerning registrars and registration is given by Pub.St. c. 32, § 18. By the Revised Ordinances of the city of Boston of 1885 (chapter 20, § 3) there are allowed to the city registrar, for the discharge of the duties of his department, three clerks for copying and three for recording. By St.1892, c. 314, § 2, the city registrar is required to appoint from his subordinates two assistant city registrars, and the same section provides that the certificates and attestations of either assistant city registrar shall have the same force and effect as those of the city registrar. The result is that the certificate of the assistant city registrar, admitted in evidence under the defendant's exception, was plainly competent.

7. In proof of the defendant's unlawful marriage, charged in the indictment, the government was allowed, against his objection and exception, to put in the testimony of a witness that he was a clergyman in Boston, and an ordained minister and pastor of a Congregational church, and that he had been such pastor for many years. The defendant contends that the testimony of this witness was not competent to prove his authority to bind parties in marriage. "A minister of the gospel, ordained according to the usage of his denomination, who resides in the commonwealth and...