Kopke v. People

• Decision Date: 11 February 1880
• Citation: 43 Mich. 41,4 N.W. 551
• Court: Michigan Supreme Court
• Parties: KOPKE v. THE PEOPLE.

4 N.W. 551

43 Mich. 41

KOPKE v. THE PEOPLE.

Supreme Court of Michigan

February 11, 1880

An information for bigamy need not aver the exceptions of the statute and negative their existence. Such information alleging both marriages, and that first wife was living at the time of the second, is good. Charge that second marriage was felonious, is sufficient averment that it was unlawful. The statutes of another state should be proved in a more direct way than by the testimony of a lawyer of that state. In prosecution for bigamy, the only evidence of a first marriage was that of a ceremony in Ohio before a justice under a license issued not by a judge of probate, as required by statute, after examination, but by one signing himself "deputy clerk," with a full knowledge on the part of the justice of all the facts, and while defendant was under arrest, with refusal of the defendant to live with the woman as his wife at any time after such ceremony. Held insufficient to sustain the verdict.

Error to recorder's court of Detroit.

Charles E. Miller, for plaintiff in error.

Otto Kirchner, Attorney General, for the people.

CAMPBELL J.

Respondent Kopke, was convicted in the recorder's court of Detroit of bigamy, the first marriage being alleged to have taken place in Ohio, on the ninth of May, 1879, and the second at Detroit, on the twenty-ninth of the same month. Exceptions are alleged on several grounds.

We do not think the information is bad for failure to allege the exceptions to the statute and negative their existence. It avers both marriages, and that the first wife was living when the second marriage took place. It is in the form commonly used, and approved by Mr. Archbald. Archb.Cr.Pl. 629. An averment setting out the first marriage must be presumed to intend a lawful marriage, and the prosecution must prove one. We can see no reason for requiring any greater fullness of allegation. As the second marriage is averred to have been felonious, we think it may fairly stand, as charged, to have been unlawful. While the word "unlawful" is generally inserted in conjunction with the term "feloniously," it would be overnice to hold that a felonious act needs any further qualification or that an information is open to anything but verbal criticism for omitting the double qualification.

The chief complaint of error refers to the rulings of the court below upon the proof of the first marriage. The charge was that if the jury believed the testimony of the witness, Edward W. Goddard, and that the statutes of Ohio which had been read to them were the law of Ohio at the time the first marriage was consummated, the marriage was in accordance with the laws of Ohio.

No objection seems to have been made to the proof of the Ohio laws by the testimony of an Ohio lawyer, and no exception is based upon it. While it does not affect the record as now presented, we deem it proper, nevertheless, to suggest that statutes should be proved in a more direct way, and that our laws, as well as the acts of congress, make distinct provision on the subject. People v. Lambert, 5 Mich. 364.

Upon the circumstances of the first marriage there was a conflict of evidence. The defendant in his statement to the jury, which stands like other testimony for their consideration and judgment as to its force, averred circumstances of fraud and duress which would, if believed, have justified a finding against the first marriage, which was not followed by any recognition or acquaintance.

In presenting the case to the jury their attention was directed only to the testimony of the...