Commonwealth v. Haylow

• Citation: 17 Pa.Super. 541
• Decision Date: 25 July 1901
• Docket Number: 5-1901
• Parties: Commonwealth v. Haylow
• Court: Pennsylvania Superior Court

17 Pa.Super. 541

Commonwealth v. Haylow

No. 5-1901

Superior Court of Pennsylvania

July 25, 1901

Submitted May 7, 1901. [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from order of Q. S. Cambria Co.-1900, No. 26 for support in case of Commonwealth v. James H. Haylow.

Proceedings for support.

Barker, P. J., filed the following opinion:

Cohabitation and reputation constitute sufficient evidence of marriage in all jurisdictions in this country and in England. The inference or presumption of marriage, however, arising from proof of cohabitation and reputation, may be rebutted. The defendant admits the cohabitation for a period of about four years, but claims that it was meretricious and not marital. He is met here by another presumption, as strong as the one first mentioned, that where cohabitation for a considerable period be established it is a lawful cohabitation, and he has rebutted neither presumption. Although the prosecutor and defendant certainly demeaned themselves toward each other as husband and wife, the proof of reputation was circumscribed by the fact that they lived in a large city and that their immediate circle of mutual acquaintances was somewhat limited, yet to the extent of that circle reputation was established.

Whatever doubt one might have as to the sufficiency of the proof to establish the marital relation, and as to whether the defendant's denial that such relationship existed rebuts the presumption arising from proof of cohabitation and reputation, that doubt must be resolved against the defendant because of his own admissions in his acts. He procured a marriage license in the city of Cleveland and gave it to her. Of course, this is invaluable to show a legal celebration, but is evidence, along with the other evidence in the case, to show that their relationship was marital. He signed and gave to her a paper reading as follows: " Cleveland, December 4, '98. I hereby agree to pay my wife, bearer of this note, the sum of $ 25.00 per month as long as I live separated from her." After he came to Johnstown he wrote her a number of letters addressing the envelopes to " Mrs. Jas. Haylow," and there is nothing in the contents of the letters to overthrow the presumptions arising from the proofs and from his own acts. The effect of similar acts as admissions have been wiped out in other cases by allegations that they were done to protect the reputation of the woman and prevent scandal, but nothing of that kind occurs here.

The question of jurisdiction has been raised but we have no trouble as to that question. The Supreme Court seems to have decided, in Barnes v. Commonwealth, 11 W. N.C. 375, that the act of 1867 gives the court jurisdiction " without reference to where the original desertion may have been." This was held to be the law by Judge Paxson in the City v. Bailey, 8 Phila. 485, and by Judge Jessup in Commonwealth v. Wilmarth, 7 Luz. Leg. Reg. 197, in well-considered opinions, delivered, however, prior to the decision in the City v. Bailey. If we were disposed to follow these cases, we could not apply them to this case because of the difference in the facts. In this case the desertion was not consummated, as in those cases, out of the state. The defendant did not announce to the prosecutor when he left Cleveland that he intended to leave her; at least, it is not so proven. He contributed to her support after he came to Johnstown, and there is nothing in his letters to her to indicate that he did not intend to continue to do so. On the contrary they indicate otherwise. Desertion is not a continuing offense. It is a simple act, and the act of desertion occurred in this county.

Defendant has asked leave to introduce other evidence. We realize the importance of the case sufficiently to reopen it if we could see that the additional evidence proposed could avail the defendant, but we do not see how it can.

And now, March 26, 1900, after full hearing, it is ordered that the defendant, James H. Haylow, pay the costs of these proceedings, and further that he pay to his wife, Marie Haylow, the sum of $ 25.00 per month, from March 5, 1900, payable monthly on the first of each succeeding month; and that he enter into recognizance, or give bond, with surety or sureties to be approved by the court, in the sum of $ 500, conditioned that he comply with the sentence of the court and remain in the custody of the sheriff till this part of the sentence be complied with.

Error assigned was the order of the court.

Affirmed.

Robert S. Murphey and Charles C. Linton, for appellant. -- The essential of a contract of marriage at common law is that the parties contemplate a present and immediate assumption of the marriage status; in other words, it is indispensable to marriage, whether under the statutes or the common law, that the parties consent to be husband and wife presently: Bishop on Marriage and Divorce, secs. 253, 254.

The parties to this proceeding clearly never presently undertook the marriage relation in the manner prescribed by the decisions; their marriage was contingent upon future events, which never came to pass: Com. v. Stump, 53 Pa. 132; Hunt's Appeal, 86 Pa. 294; Appeal of the Reading Fire Insurance & Trust Company, 113 Pa. 204; Grimm's Estate, 131 Pa. 199; Bicking's Appeal, 2 Brewster, 202; Yardley's Estate, 75 Pa. 207; Tholey's Estate, 93 Pa. 36; 14 Am. & Eng. Ency. of Law, title, Marriage, 528.

The mistake of the court is in overlooking the well known and already cited presumption that intercourse in its inception being illicit, it is presumed to continue until a change in intention is produced: Guardians of the Poor v. Nathans, 2 Brewster, 149; Bicking's App., 2 Brewster, 202.

M. B. Stephens and F. J. O' Connor, for appellees. -- The appellee contends that the only question in this case that can be inquired into by the Superior Court is the regularity of the proceedings in the court below. The appellant is not entitled to a bill of exceptions so as to bring up anything but the record: Chase v. Miller, 41 Pa. 403; Commonwealth v. James, 142 Pa. 32; Commonwealth v. Jones, 90 Pa. 431; Commonwealth v. Tragle, 4 Pa.Super. 164; Overseers v. Overseers, 2 Pa.Super. 400.

It can no longer be contended that an appeal will lie from a proceeding in desertion and nonsupport under the Act of March 16, 1868, P. L. 46, so as to review the facts, as such an appeal is in effect a certiorari and under which only the regularity of the proceedings will be inquired into. The finding of a fact by the court below and its order and decree in an action of nonsupport under the act of 1867 is final: Commonwealth v. Hart, 12 Pa.Super. 609.

Before Rice, P. J., Beaver, Orlady, W. W Porter and W. D. Porter, JJ.

OPINION

RICE, J.

The question presented to the court below was whether there was a valid marriage between the prosecutrix and the defendant, it being admitted that there was no ceremony? The decision of the questions of fact by the quarter sessions is as conclusive as the verdict of a jury, and in no view which may be taken of our appellate jurisdiction are we authorized to go further than to ascertain whether there was evidence, which, if believed, would sustain the finding. It may well be questioned whether we are required to go that far in a desertion case, even though an exception was taken to the ruling of the court below and the transcript of the evidence was approved by the presiding judge and directed to be filed. We, however, will not stop to consider that question in this opinion.

Cohabitation for a period of about four years was clearly proved, indeed was not denied. The proof of reputation of marriage is not so clear, but notwithstanding the earnest argument of the appellant's counsel to the contrary, we think there was sufficient evidence of the fact to warrant this conclusion of the presiding judge, namely: " Although the prosecutrix and defendant certainly demeaned themselves toward each other as husband and wife, the proof of reputation was circumscribed by the fact that they lived in a large city and their immediate circle of mutual acquaintances was somewhat limited, yet to the extent of that circle reputation was established." See further as to proof of reputation, Hines's Estate, 10 Pa.Super. 124, and the remarks of Judge Ashman in Comly's Estate, 185 Pa. 208. But neither cohabitation nor reputation of marriage is marriage. When conjoined they are evidence from which a presumption of marriage arises, but the presumption arising from such facts may always be rebutted, and wholly disappears in the face of proof that no marriage in fact had taken place: Yardley's Estate, 75 Pa. 207; Hunt's Appeal, 86 Pa. 294; Appeal of Reading Fire Ins. & Trust Co., 113 Pa. 204; Grimm's Estate, 131 Pa. 199. Nor is cohabitation under an agreement to marry on a future day marriage: Grimm's Estate, supra. If, therefore, as the defendant testified, their cohabitation was under an agreement that if they got along harmoniously they would be married, if not they would separate, it is scarcely necessary to say that this was not marriage. But the prosecutrix gave an entirely different version of the circumstances under which they cohabited, and if she is to be believed the rule recognized in Hunt's Appeal, 86 Pa. 294, and that class of cases does not necessarily apply. She testified...