State v. McDonald

• Decision Date: 31 March 1857
• Citation: 25 Mo. 176
• Parties: THE STATE, Respondent, v. MCDONALD, Appellant.
• Court: Missouri Supreme Court

25 Mo. 176

THE STATE, Respondent,

v.MCDONALD, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. In the case of an indictment for adultery, the declarations and admissions of the defendant are competent evidence to prove that he was a married man at the time of the alleged adultery.

Appeal from St. Louis Criminal Court.

This was an indictment for adultery. Upon the trial the State, to prove the marriage of the defendant, Robert McDonald, at the time of the alleged adultery, offered the declarations of defendant, made before and after the alleged adultery, to the effect that Rebecca McDonald was his wife, and that he had intermarried with her in the State of Pennsylvania. The court admitted these declarations against the objection of defendant. The court gave the following instruction to the jury: “If you believe that defendant acknowledged a woman named Rebecca McDonald to be his wife and lived with her as such, this is competent evidence of his marriage for your consideration; and if from these circumstances you are satisfied beyond a reasonable doubt that defendant was lawfully married to the said Rebecca, you should find the fact of his marriage for the State.” The following instructions asked by the defendant were refused: “Mere evidence of cohabitation of the defendant with Rebecca McDonald, and his holding her out to the world, is no proof of marriage; and unless the jury have other evidence of marriage, they should acquit. In a case of this character marriage can only be proven, 1st, by persons who were present at the marriage; or, 2d, by the certificate of marriage, or the record evidence of the same; that in a prosecution for adultery, marriage cannot be proven by the admission of the defendant.” Other instructions were given and refused. It is unnecessary to set them forth.

N. McDonald, for appellant.

I. The court erred in refusing the instruction asked by defendant. Though there are some decisions to the effect that in prosecutions for bigamy, adultery, etc., the confessions of the defendant are sufficient to establish the fact of marriage, the preponderance of opinion is the other way. (See R. C. 1845, p. 730; Whart. C. L. 759; Morris v. Miller, 4 Burr. 2057; Birt v. Barlow, Dougl. 171; 1 Selw. N. P. 14; 3 Black. Rom. 147; 1 Cara. & Kir. 164; 2 Wils. 399; Leader v. Barry, 1 Esp. 353; Commonwealth v. Littlejohn, 15 Mass. 163; Commonwealth v. Norcross, 9 Mass. 492; People v. Humphrey, 7 Johns. 314; Fenton v. Reed, 4 Johns. 53; The State v. Roswell, 6 Conn. 446; Kerby v. Rucker, 1 A. K. Marsh. 290; 15 Mass. 163; 7 Greenl. 57; 8 id. 75; Swift's Digest, 501; Arch. C. P. 475; Jackson v. People, 2 Scam. 231.)

H. A. Clover, for The State, cited Morgan v. The State, 11 Ala. 289; State v. Hilton, 3 Rich. S. C. 434; Mary Norwood's case, 1 East.___; Commonwealth v. Werner, 2 Va. Cas. 95; State v. Britton, 4 McCord, 256; Commonwealth v. Murtagh, 1 Ashm. 272; Forney v. Hallacher, 8 S. & R. 160; 16 Ohio, 173; Cook v. The State, 11 Georg. 53.

RYLAND, Judge, delivered the opinion of the court.

This was an indictment against Robert McDonald for adultery. He appeared to the indictment and pleaded “not guilty.” There was a trial, and the defendant was convicted. He moved for a new trial, which, being denied, he brings the case here by appeal.

The only question for our determination is whether defendant's confession that he was married was competent evidence. On the trial below the State, to prove the marriage of defendant at the time of the alleged adultery, etc., offered the declarations of the defendant, made before and after the alleged adultery, to the effect that the said Rebecca was his wife, and that he had intermarried with her in the State of Pennsylvania. The defendant objected to the introduction of such evidence as incompetent to prove a marriage in fact; but the court overruled the objection, and let in the evidence. The defendant saved the point, and this is the only question in the case.

Greenleaf, in his treatise on evidence (1 Greenl. Ev. § 215), says: “Subject to these cautions in receiving and weighing them, it is generally agreed that deliberate confessions of guilt are among the most effectual proofs in the law.” “Their value depends on the supposition that they are deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience.” In the same treatise (2 Greenl. Ev. §45, tit. Adultery), it is said: “As to proof by the confession of the party, no difference of principle is perceived between this crime and any other. It has already been shown that a deliberate and voluntary confession of guilt is among the most weighty and effectual proofs in the law.” In Cayford's case, 7 Maine, 57, it was held that in an indictment for lewd cohabitation, adultery or bigamy, the prisoner's confession of the fact of his marriage is sufficient proof of the fact. In this case, Mellen, C. J., said: “Nothing is more clear than that proof of the voluntary confession of a man, on trial for adultery, or lascivious cohabitation, that he is guilty of the crime charged, is legal evidence, and, in the absence of controlling evidence, is abundantly sufficient; and the reason why his confession, that he was a married man at the time of committing the offense charged, should not be good also, is not very apparent.” In Morris v. Miller, 4 Burrow, 2057, Lord Mansfield said, that “in case of bigamy, as well as in crim. con., it is essential to prove marriage in fact as distinguished from the acknowledgment of the parties. The cases, however, are different. In the civil action the plaintiff demands damages which he has no right to recover, unless there has been a legal marriage between him and the woman with whom the defendant is charged to have committed the adultery; and in such a case the confession of the defendant, who may be a total stranger to the marriage, will amount only to an acknowledgment of a marriage by reputation. In that light the court viewed the confession of Miller as to the alleged marriage between Mr. and Mrs. Morris. But in a prosecution against a man for bigamy, adultery, or lascivious cohabitation, the confession of the defendant is of a different character. It is the confession of one who must certainly know whether the fact confessed is true or false.” Justice Buller, speaking of the case of Morris v. Miller, says: “The evidence of the defendant's confession was not sufficient, for it was only a confession of the reputation that she went by the name of the...