People v. McCaffrey

• Decision Date: 07 June 1889
• Citation: 75 Mich. 115,42 N.W. 681
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MCCAFFREY.

42 N.W. 681

75 Mich. 115

PEOPLE v. MCCAFFREY.

Supreme Court of Michigan

June 7, 1889

Error to circuit court, Macomb county.

Edward McNamara, (Charles Flowers, of counsel,) for appellant.

LONG J.

On July 12, 1888, the defendant filed a bill for divorce against his wife, Gertrude McCaffrey, in the circuit court for Macomb county, in chancery. The bill alleged their marriage as having taken place at Ogdensburg, St. Lawrence county, N. Y on May 10, 1874, and that they lived and cohabited together as husband and wife up to December 1, 1885; that he has resided in this state since said marriage continually for a period of two years and upwards, immediately preceding the time of exhibiting his bill; that there are no children issue of the marriage, and that the defendant, disregarding her marriage vow, deserted him in the month of February 1886; and that previous to her desertion she constantly was in the habit of practicing upon him extreme cruelty. The bill then sets out with much particularity the various acts of extreme cruelty claimed to have been practiced upon him by the defendant, and alleges that the acts done and cause of divorce charged in the bill for which divorce is sought were committed without the consent connivance, privity, or procurement of the complainant, and that the bill is not founded on, or exhibited in consequence of, any collusion, agreement, etc. The bill contains the usual prayer for answer, relief, and prayer for process. The bill was signed by the defendant, Joseph G. McCaffrey, and indorsed by Francis B. Owen, his solicitor. This bill was sworn to by the defendant in this case, the notary public making and annexing to the bill the following jurat. "State of Michigan, County of Macomb-ss.: On this 12th day of June A. D., 1888, before me personally came the above-named Joseph G. McCaffrey, and made oath that he has heard read the foregoing bill of complaint by him subscribed and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be on his information or belief, and as to those matters he believes it to be true; and he does swear that there is no collusion, understanding, or agreement whatever between himself and the said defendant herein, in relation to this application for divorce. CHARLES A. FITCH, Notary Public. Macomb Co., Mich." This bill so verified was filed in the office of the register of said court on the 12th day of June, 1888.

The defendant was informed against in the circuit court for Macomb county for perjury in falsely swearing to this bill of complaint. The allegations in the information are, after setting out the bill of complaint and its verification, that the defendant was not intermarried with Gertrude Carter as alleged in the bill at Ogdensburg, St. Lawrence county, N. Y., on or about May 10, 1874, but, on the contrary, was married to her on July 30, 1887, at Chicago, in the state of Illinois, and that they did not live and cohabit together as husband and wife from the 10th day of May, 1874, until December 1, 1885, and that they neither lived nor cohabited together as husband and wife at any time or place prior to July 30, 1887; and that at time he took his corporal oath on June 12, 1888, he had not resided in this state, since said marriage with the defendant named in said bill, continually for a period of two years and upwards immediately preceding the time of exhibiting said bill, and neither had he resided in this state one year immediately preceding the time of exhibiting said bill of complaint. That the said Gertrude McCaffrey did not, disregarding the solemnity of her marriage vow, desert her husband in the month of February, 1886, neither had she any husband at that time, and that Gertrude McCaffrey was not in the habit of practicing extreme cruelty upon complainant mentioned in the bill. The information then negatives each and every act of extreme cruelty charged in the bill. The information then concludes: "And whereas, in truth and in fact, the said bill of complaint that the said Joseph G. McCaffrey had heard read, and by him subscribed, and knew the contents thereof, was not then and there true of his own knowledge, except as to those matters which were then and there stated to be on his information or belief, he did not then and there believe it to be true. And so the prosecuting attorney aforesaid says and gives the court to understand and be informed that the said Joseph G. McCaffrey on the 12th day of June, 1888, at the city of Mt. Clemens aforesaid, in the county of Macomb aforesaid, before the said Charles A. Fitch, notary public aforesaid, then and there having such power and authority aforesaid, by his own most wicked and corrupt mind, in manner and form aforesaid, willfully and corruptly did commit willful and corrupt perjury, contrary to the form of the statute," etc. The defendant was convicted in said circuit court before a jury under this information, and sentenced to imprisonment for the term of five years in the state prison at Jackson, and brings the case into this court by writ of error.

It appears that after the bill was filed with the register of the circuit court the defendant went before a circuit court commissioner of Macomb county, made an affidavit of nonresidence, in which he made oath that his wife was a resident of Springfield, state of Ohio, and not of Michigan, and upon this affidavit procured an order for appearance from the commissioner, which defendant caused to be published in the Mt. Clemens Monitor, a newspaper printed and published in said county. After the arrangement had been made to have this order published, defendant and his solicitor in the divorce case went to Detroit, and on July 19, 1888, both returned to Mt. Clemens, accompanied by one Jennie L. Judson, whom McCaffrey had procured to act as a witness in his divorce proceedings. The parties went before a justice of the peace at Mt. Clemens, where two affidavits were prepared, one sworn to by McCaffrey, and the other by Jennie L. Judson. In this affidavit Jennie L. Judson testified that she had known the complainant since the year 1874, and was acquainted with Gertrude McCaffrey, his wife, up to the time of her desertion from Joseph G. McCaffrey, which occurred in February, 1886. McCaffrey testified in his affidavit that he married Gertrude Carper in the year 1874, and lived with her until February, 1886, from which time said Gertrude deserted from his bed and board; that he has been a resident of Michigan for five years; and that he seeks a divorce from said Gertrude according to the prayer of his bill filed in the office of the county clerk of Macomb county, notice of said cause having been published in the Mt. Clemens Monitor the legal length of time, etc. These affidavits were made and sworn to before the justice, Mr. Salisbury, on July 19, 1888, and were called by the parties the "proofs in the case," the justice appearing for the defendant. Mr. Salisbury then wanted something to show that he had authority to appear for the defendant in the divorce case. McCaffrey thereupon, after returning to Detroit, took to Mrs. Judson a draft of a letter to Salisbury, prepared by himself, which purported to give Salisbury authority to act for the defendant, and which he requested Mrs. Judson to copy, so that it might appear in a lady's handwriting. This Mrs. Judson refused to do, but a letter was produced to Salisbury purporting to come from Mrs. McCaffrey in all respects like the one shown to Mrs. Judson by McCaffrey. These affidavits were all filed in the cause with the register of the court, and Owen, acting as solicitor for the complainant, also filed an affidavit of regularity in the cause. On the 2nd day of August following the complaint was made against the defendant for perjury.

At the close of the testimony the court charged the jury substantially that perjury was not charged upon these papers, filed outside the bill, and he could not be found guilty of perjury even if these papers were false and untrue; that they were only introduced and received in evidence as a part of the history of the transaction; that perjury is not assigned upon the whole bill, but is assigned (1) that the defendant and Anna Gertrude Carper were married at Ogdensburg, St. Lawrence county, N. Y., on or about May 10, 1874; (2) that they, after being so married, lived and cohabited together as husband and wife from on or about May 10, 1874, until on or about December 1, 1885; (3) that the parties resided in this state after marriage for a period of two years and upwards, immediately preceding the time of exhibiting the bill of complaint; (4) that the defendant, disregarding the solemnity of her marriage vow, in the month of February, 1886, deserted her husband.

The court took from the consideration of the jury all questions relative to the alleged acts of cruel treatment stated in the bill, but charged that the statements in the bill as to the marriage, the time of the marriage, the residence of the parties, their cohabitation, and the desertion were all material allegations in the bill, and, if he swore falsely as to those allegations, he would be guilty of perjury. The court then further charged the jury that "it is averred in the information that the oath was administered to the defendant by Mr. Fitch on June 12th, and that he wrote or signed this certificate of that verification attached to the bill. Now, it is necessary that you should be satisfied beyond a reasonable doubt that that oath was so administered in the form in which it is alleged in the information, and which I have substantially repeated to you. It is claimed on the part of the prosecution, and they have adduced evidence to show, that it was...