People v. Schoonmaker

• Citation: 75 N.W. 439,117 Mich. 190
• Court: Supreme Court of Michigan
• Decision Date: 24 May 1898
• Parties: PEOPLE v. SCHOONMAKER.

75 N.W. 439

117 Mich. 190

PEOPLE v. SCHOONMAKER.

Supreme Court of Michigan

May 24, 1898

Exceptions from circuit court, Emmet county; Oscar Adams, Judge.

Earl Schoonmaker was convicted of the crime of rape, and he appeals. Reversed.

B. T. Halstead, for appellant.

Fred A Maynard, Atty. Gen., and Clay E. Call, Pros. Atty., for the People.

MONTGOMERY J.

The respondent was convicted of statutory rape. The complaining witness was at the time under 16 years of age. It is not claimed that the act of intercourse was against the will of the complaining witness, but the offense is under the statute ample without such proof, as she is in the law incompetent to give consent. People v. Ten Elshof, 92 Mich. 167, 52 N.W. 297.

When the complaining witness was called to the stand, she was interrogated by the respondent's counsel as to her competency. From the examination it appears that she had gone through a form of marriage with respondent before the judge of probate of Emmet county. Under certain conditions such a marriage is authorized by the terms of Act No. 180, Laws 1897. The prerequisite conditions were not affirmatively shown by the respondent or testified to by the witness. But if the fact of marriage rendered her incompetent to testify to the facts in this case, the presumption from a proof of a ceremony by the officer authorized to perform it is in favor of the regularity and legality of his act. Whart. Ev. � 1297; 1 Bish. Mar. & Div. � 946.

The evidence shows that the complaining witness is an orphan, and that her stepfather did not give his consent to the marriage. The circuit judge was of the opinion that this fact overcame the presumption of regularity. This view cannot be sustained. The stepfather is not a natural guardian of the child. Schouler, Dom. Rel. 406.

The question is therefore presented as to whether the wife is a competent witness to the act charged as occurring before marriage. It is to be noted that Laws 1897, Act No. 180 makes no provision on this subject, and that, therefore, the general statute, 3 How. Ann. St. � 7546, must govern. That section declares the general incompetency of the wife, and contains an exception of cases where "the cause of action grew out of personal wrong or injury done by one to the other." This provision is declaratory of the common law, and has its origin in the recognized necessity of protection to the injured spouse. Whart. Cr. Ev....