People v. Calder

• Decision Date: 21 July 1874
• Citation: 30 Mich. 85
• Court: Michigan Supreme Court
• Parties: The People v. Andrew G. Calder

30 Mich. 85

The People v. Andrew G. Calder

Supreme Court of Michigan

July 21, 1874

Heard July 15, 1874

Exceptions from the Recorder's Court of Detroit.

Isaac Marston, Attorney General, for the People.

C. B Howell and Chipman, Dewey & Hawes, for respondent.

OPINION

Graves, Ch. J.:

This case comes up on exceptions before judgment. The defendant was convicted in the recorder's court of the city of Detroit, on an information for polygamy.

The information charged the defendant with having intermarried with Louisa C. Poole on the 28th of September, 1869, at the city of Brooklyn, in the state of New York, and during the continuance of that marriage, and on the 24th day of June, 1873, with having married Mary Ida Calder, at Detroit.

By the evidence it appeared that the fact relied on as a first marriage occurred in the city of New York, and not in Brooklyn, as stated in the information, and this variance is suggested in argument as possibly material.

We do not deem this objection of any weight. The particular place in the state of New York where the first marriage occurred was not a substantial ingredient of the charge, and the failure to prove it literally as laid, did not expose the case to any serious objection.

The material point was, that the marriage occurred within the territorial dominion of New York. Because the quality of the fact in reference to the alleged offense depended, not upon its having occurred in any specific locality within the state, but upon its having actually happened under the influence of the laws there. There is no reason to suppose that the defendant was in the least misled. If he was, he should have made the fact known, in which case the court, no doubt, would have prevented his being prejudiced by the misstatement in the information. We observe that no objection whatever, on the ground of variance, was taken to the evidence, and it does not appear by the record that the point was suggested to the court below at any time.

The next point concerns the validity of the evidence of the New York marriage.

It is contended for defendant that there was no proper evidence that the marriage was according to the laws of that state.

By the positive law of this state, printed copies of the statutes and resolves of any of the United States, if purporting to be published under the authority of the proper government, are required to be admitted in all proceedings in our courts as prima facie evidence: § 5935, Comp. L. The same rule is laid down in New Hampshire, without the aid of statute: Emery v. Berry, 8 Fos. 473.

In the present case, Mr. Romeyn, an attorney and counselor of this court, produced upon the stand a printed volume, purporting to be one of the revised statutes of New York, and dated in 1852, and he identified it as such.

The book purported to contain the statutory regulations of the state on the solemnization of marriage, as such regulations existed in 1852, and the counsel for the defendant objected to the introduction of the volume on the ground that it was not competent, and for the reason that Mr. Romeyn was not shown to have any special knowledge on the subject.

The import of this objection is not very clear, but we shall notice the grounds of it as we understand them.

It is said that this publication of 1852 was not proper to show what was the law in 1869.

The witness, Mr. Romeyn, before the book was admitted, was interrogated at considerable length as to his knowledge whether the legislature of New York had made any change between 1852 and 1869, and he testified that he could not state positively that none had occurred. The fair inference, however, from his evidence, was that if any change had been made he would have been likely to have known of it, and that he was not aware of any alteration.

The court admitted the volume, and the defendant's counsel excepted.

I am of opinion that the ruling was correct. It would seem that the book, as it stands described in the record, was within the provision before cited. It appeared to be a volume of New York statutes, published by authority of the state, and possessing this character of identity and authenticity, it approved itself as an item which was admissible: People v. Lambert, 5 Mich. 349; Merrifield v. Robbins, 8 Gray 150; Inhabitants of Woodstock v. Hooker, 6 Conn. 35; Hale v. N. J. Steam Navigation Co., 15 Conn. 539; Emery v. Berry, 8 Fos. (N. H.), 473.

The prosecution, however, did not stop with the evidence which the volume itself afforded of its character and genuineness. Mr. Romeyn was specially interrogated on the subject, and his testimony went to fix its credit.

It is not necessary to consider here...