State v. Schweitzer

• Decision Date: 09 September 1889
• Citation: 57 Conn. 532,18 A. 787
• Court: Connecticut Supreme Court
• Parties: STATE v. SCHWEITZER.

18 A. 787

57 Conn. 532

STATE

v. SCHWEITZER.

Supreme Court of Errors of Connecticut.

Sept. 9, 1889.

Appeal from court of common pleas, New Haven county; DEMING, Judge.

E. P. Arvine and C. A. Harrison, for appellant. W. B. Stoddard and G. M. Gunn, for the State.

ANDREWS, C. J. The defendant was prosecuted before a justice of the peace in the town of Milford, under section 3402 of the General Statutes, for unlawfully neglecting and refusing to support his wife, and was convicted. He appealed to the criminal side of the court of common pleas in New Haven county. In the latter court he demurred to the complaint on the ground that it merely charged the defendant with neglecting and refusing to support his wife, and did not allege a marriage to her. The demurrer was overruled, and the defendant was tried to the jury upon the plea of not guilty. He was convicted, and has now appealed to this court. The attorney for the state suggests at the opening of his argument that this is in substance a civil proceeding, although criminal in form, analogous to proceedings under the bastardy act. We are of opinion that this is a criminal prosecution. The reasons given in State v. Keenan, 57 Conn. 286, ante, 104, are decisive. See, also, State v. Ransell, 41 Conn. 440.

There are 12 reasons of appeal, the first 9 of which may very briefly be disposed of. The demurrer was properly overruled. The offense is charged in the words of the statute. Whiting v. State, 14 Conn. 487; State v. Bierce, 27 Conn. 319; State v. Lockbaum, 38 Conn. 400; State v Cady, 47 Conn. 46. The evidence of Mary Schweitzer, the alleged wife, that she was married to the defendant, was admissible. Marriage is a fact that may be proved by parol. Whart. Ev §84; Hayes v. People, 25 N Y. 390; Fenton v. Reed, 4 Johns 52. Even in cases where an actual marriage is required to be proved, in contradistinction to an implied one, as in criminal conversation, or bigamy, or incest, the marriage may be proved by the testimony of any competent witness who was present at its celebration. Morris v. Miller, 4 Burrows, 2057; Rex v. Hassall, 2 Car. & P. 434, note; State v. Roswell, 6 Conn. 446.

The certificate was admissible. It was offered as, and purported to be, the original marriage certificate. It was clearly admissible in connection with the testimony of Mrs. Schweitzer. Northrop v. Knowles, 52 Conn. 522; Swift, Ev. 5.

The evidence of cohabitation was admissible. The fact of cohabitation as man and wife raises a presumption of a legal marriage. Whart. Ev. §§ 84, 1297. Cohabitation does not make a marriage, but it is evidence from which a jury have a right to find an actual marriage. Campbell v. Campbell, 1 L. R. H. L. Sc. 193. In this case, Lord CRANWORTH said: "By the law of England, and I presume of all other Christian countries, where a man and woman have long lived together as man and wife, and have been so treated by their friends and neighbors, there is a prima facie presumption that they really are, and have been, what they profess to be:" We see no reason why the confession of the defendant that he had been married to Mary was not admissible against him. It was a fact peculiarly within his knowledge.

The 6th, 7th, 8th, and 9th reasons of appeal are but repetitions of the same thought. The court could not properly instruct the jury that there was no sufficient evidence of a marriage, when there was before them evidence tending to prove a marriage, and from which they had the right to find a marriage in fact. The claim presented by the 12th reason of appeal was not made on the trial. The defendant, for the purpose of showing that he was not liable to the prosecution, offered evidence tending to show, and claimed that he had proved, that his wife had committed adultery previous to the time he turned her out of doors and refused to support her. Upon this evidence, he requested the court to charge the jury "that if they believed Mrs. Schweitzer to have been guilty of adultery prior to the separation, their verdict should be for the accused." The court charged that "he" (the defendant) "must support her, unless there is some legal reason, and a lawful reason assigned by the defense is adultery. The defense claim that this woman had been guilty of adultery, and they have introduced evidence to sustain that claim; and I would say to you that the burden of proof is as absolute and as binding upon them as upon the state. Their evidence in that ease must not be enough simply to raise the suspicion of adultery. They must have more than simply thrown a shadow of doubt over the virtue and chastity of the woman. They must go further on their part of the case, and show you, beyond a reasonable doubt, that the woman has been guilty of adultery. If they have satisfied you that the woman has been guilty of adultery, then that is a sufficient, legal excuse, and your verdict should be not guilty." The 10th and 11th reasons of appeal are predicated upon the request and the charge. We think the court was correct in charging that adultery, if proved, was a sufficient defense. A husband may lawfully refuse to support an adulterous wife. 1 Selw. N. P., (Wheat. & Whart. Ed.) 205-207; Gill v. Read, 5 R. I. 343; Hunter v. Boucher, 3 Pick. 289; Schouler, Dom. Rel. 91; 1 Bish. Mar. & Div. § 573.

In criminal cases the general rule is that before a conviction can be had the jury must be satisfied upon all the evidence, beyond a reasonable doubt, of the affirmative of the issue presented by the state, to-wit, that the accused is guilty in manner and form as charged in the information. In criminal jurisprudence the law itself holds an uneven balance. It imposes upon the state the burden of proving the case set forth in the information, in all its parts, beyond a reasonable doubt, and commands juries that if the case is not so proved to acquit the accused. In a criminal trial upon the plea of not guilty, the main issue is,—and there is strictly but one,—"Is the prisoner guilty or not guilty of the crime charged against him?" Upon that issue the burden of proof is on the state from the beginning to the end of the trial. It never shifts; and the jury, in their ultimate analysis of the entire evidence in the case, must find, in order to convict, that all the conditions of guilt against the prisoner have been proved beyond a reasonable doubt. If the case is not so proved in every material part, then it is the duty of the jury to acquit. If the defendant relies upon some distinct, substantive ground of defense not necessarily connected with the transaction on which the information is founded, as insanity, or self-defense, or an alibi, or, as in the case at bar, the adultery of the wife, he must prove it as an independent fact. As to such fact, he presents a subordinate issue, upon which he goes forward with his evidence, and the state rebuts. And, as the purpose of such a defense is to subvert or to render doubtful some material part of the case necessary to be proved in order to convict him, it is incumbent upon the defendant to establish the fact or facts which constitute his defense by such a weight of evidence as will be sufficient to accomplish that purpose. The cases differ as to what that weight of evidence is. Some of them hold that the defense must be proved beyond a reasonable doubt; others, that the jury should be governed by the preponderance of the evidence; and still others seem to hold that the prosecution must substantially disprove the defense. Some of the differences are apparent rather than real, and arise from using the term "burden of proof" and the term "reasonable doubt," without clearly discriminating whether the term is applied to the defense, or to some part of the prosecution. All authorities agree that the burden is upon the state to make out its accusation in a criminal case beyond all reasonable doubt. It seems to be agreed, with substantially the same unanimity, that when a defendant desires to set up a distinct defense, such as is above mentioned, he must bring it to the attention of the court; in other words, he must prove...