Commonwealth v. Jackson
| Decision Date | 04 February 1876 |
| Citation | 74 Ky. 679 |
| Parties | Commonwealth v. Jackson. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LEWIS CIRCUIT COURT.
THOS. E. MOSS, Attorney General, A. E. COLE, For Appellant.
WALKER & JOHNSON, For Appellee.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
The appellee was indicted in the Lewis Circuit Court for the crime of bigamy, and was tried by a jury, and under a peremptory instruction of the court was found not guilty, and the Attorney General prosecutes this appeal under section 331 of the Criminal Code in order to obtain the opinion of this court upon the point decided adversely to the commonwealth by the circuit court.
The only evidence of a marriage of the appellee prior to that alleged to be polygamous consisted of evidence of his declarations that another woman was his wife, and of the fact that he had lived with, recognized, introduced, and represented her as his wife.
One witness testified that appellee came to Maysville as early as September, 1874, and engaged to sell sewing machines for him; that he then said he was a married man, and that his wife was in Higginsport, in the state of Ohio; that he (witness) subsequently let the appellee have money with which he said he wanted to bring his wife from Higginsport to Maysville; that he brought a lady to Maysville, whom he introduced to witness as his wife, and boarded with her in a respectable family; that the lady gave birth to a child while in Maysville, and that the appellee told him it was his child, and that his wife had given birth to another child which died in Ohio, the funeral expenses of which the witness paid at appellee's request.
Another witness testified that two or three weeks before the alleged second marriage the appellee applied to him for a horse and buggy to take his wife to the railroad depot, saying she was going to Louisville; and a third witness swore that appellee lived with the woman that came from Higginsport, and claimed that she was his wife.
The circuit judge seems to have been of the opinion that an indictment for bigamy could not be maintained without proof of the fact of two marriages, either by record evidence or by the testimony of one or more witnesses who were present at the solemnization of the marriage rites; or, in other words, that the declarations and conduct of the defendant, admitting his marriage and living with and recognizing the woman as his wife, were not sufficient to warrant the jury in finding a verdict against him.
This is a subject about which there is irreconcilable conflict in the authorities. In Massachusetts, New York, and Connecticut, and perhaps in some other states, it has been held that in prosecutions for bigamy an actual marriage of the prisoner must be proven, and that neither cohabitation, reputation, nor the confessions of the prisoner are admissible for that purpose, or, if admissible, are not of themselves sufficient to warrant conviction. (The Commonwealth v. Littlejohn and Barbarick, 15 Mass. 163; Roswell's case, 6 Conn. 446; The People v. Humphrey, 7 Johns. 314.)
On the other hand, it has been held in South Carolina, Virginia, Georgia, Alabama, Ohio, Pennsylvania, Maine, and Illinois that in prosecutions for bigamy the confessions of the prisoner deliberately made are admissible as evidence to prove marriage in fact, and in some of those states that such confessions are of themselves sufficient to authorize the jury to convict.
These were not all prosecutions for bigamy, but they were all cases in which the prosecution could only be made out by proof of a marriage in fact, and the same principle which would admit evidence of the admissions, confessions, or conduct of the prisoner in such of them as were not for bigamy, would also authorize its admission in prosecutions for that crime.
The American cases in which it has been held that evidence of such declarations, confessions, and conduct is not admissible, or, if admissible, is not of itself sufficient to warrant conviction, seem to rest on the authority of Morris v. Miller (Burr. 2056) and Birt v. Barlow (Douglas, 171).
These were actions for crim. con. in which the plaintiffs attempted to establish their marriages by giving in evidence their own declarations, and proving their recognition of and cohabitation with the women alleged to be their wives.
In the former case Lord Mansfield said: "There must be evidence of a marriage in fact; acknowledgment — i.e., acknowledgment of the husband by the wife — cohabitation, and reputation are not sufficient in this action." And he gives his reasons for so holding. "It shall not depend," said he, "upon the mere reputation of a marriage which arises from the conduct or declarations of the plaintiff himself." Again he says: And twelve years later, in deciding the case of Birt v. Barlow, he gave the same reasons for a like decision.
And this additional reason seems to us to be entitled to considerable weight in support of the rule announced by Lord Mansfield in those cases, and by this court in the case of Kibby v. Rucker (1 A. K. Mar. 290), as applicable to actions for crim. con. In such cases the plaintiff knows when, where, and by whom he was married, and at least some of the persons who were witnesses of the fact, and generally has it in his power to offer direct and positive proof. But the case is often quite otherwise with the government in prosecutions for bigamy. The prosecuting officer must often be wholly ignorant of the time and place of the prisoner's first marriage, of the names and residence of those present at its consummation, and the avenues of information will generally be closed to him, especially when the first marriage took place, as is generally the case with bigamists, in some other state or country. Another difficulty in the way of the government under the rule that the first...
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