Com. v. Lucas

• Decision Date: 06 January 1893
• Citation: 158 Mass. 81,32 N.E. 1033
• Parties: COMMONWEALTH v. LUCAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 81

32 N.E. 1033

COMMONWEALTH v. LUCAS.

Supreme Judicial Court of Massachusetts, Plymouth.

January 6, 1893

COUNSEL

G.C. Travis, First Asst. Atty Gen., for the Commonwealth.

JM. & T.C. Day and H. Kingman, for defendant.

OPINION

FIELD C.J.

The defendant was indicted for polygamy, under Pub.St. c. 207, §§ 4, 5. The first part of the indictment is, in substance, that the defendant, at Portland, in the state of Maine, unlawfully married one Carrie B. Tracy, being then the lawful husband of one Mary A. Burke, who was alive, and from whom he had not been legally divorced. The defendant offered in evidence what purported to be a copy of the record of the supreme judicial court of the state of Maine, at a term held at Auburn, within the county of Androscoggin, on the third Tuesday of September, A.D.1890, in a cause of divorce in which Thomas M Lucas, of Auburn, in said county, husband of Mary A. Lucas was the libelant, and the said Mary A. Lucas was the libelee, in which it appears that the libel alleged that they were married "at Brockton, in the state of Massachusetts, May 6, 1876, by Rev. Father Doherty" It also appears therein that the libelant gave "notice of his said libel to the said Mary A. Lucas, pursuant to the order of court thereon, *** but the said Mary A. Lucas, though solemnly called to come into court, does not appear, but makes default;" whereupon the court found that the material facts alleged in the libel had been proved to its satisfaction, and granted a divorce from the bonds of matrimony, "for the cause of utter desertion, continued for more than three years, as set forth in the libel." The copy purports to be attested by the clerk of that court, but it does not appear by the exceptions whether the seal of the court was annexed, although the exceptions recite that it was duly authenticated. See Pub.St. c. 169, § 67. This copy was rejected by the court, on the ground that there was no evidence "that the defendant was the same Thomas M. Lucas named in said record." The exceptions recite that "Mary A. Lucas, formerly Mary A. Burk," had previously been called as a witness by the commonwealth, and had testified "that on the 10th day of May, in the year 1876, she was united in marriage with the defendant, (whom she saw in court, and identified,) at Brockton, in said county, [Plymouth,] by the Reverend Father Doherty," and that "he deserted her in the year 1881." This testimony accords with the allegations contained in the record of the Maine court, except that there it is alleged that they were married on May 6, 1876, and that she deserted him on July 20, 1881. The exceptions also recite that there was evidence "tending to show that in the month of February, A.D.1890, and at other times, the defendant was residing in the state of Maine, and in the town of Auburn." The identity of the names and the close resemblance of the other facts found in the record of the Maine court, and in the testimony at the trial, in the present case, afford abundant evidence that the defendant is the same person as the libelant in the record, and for this reason the exceptions must be sustained.

The only other exception which has been argued for the counsel for the defendant relates to his request that the court rule "that the word 'cohabit,' in the statutes of this commonwealth relating to the crime of polygamy, means more and something different from the living or residing together of two parties in the same house; it means such a continuous living or associating together as is common and usual between husband and...