State v. Wheeler

• Decision Date: 05 December 1916
• Docket Number: 13561.
• Citation: 161 P. 373,93 Wash. 538
• Parties: STATE v. WHEELER.
• Court: Washington Supreme Court

161 P. 373

93 Wash. 538

STATE v. WHEELER.

No. 13561.

Supreme Court of Washington

December 5, 1916

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Arthur R. Wheeler was convicted of adultery, and was denied new trial, and he appeals. Reversed and remanded, with instructions.

Chadwick J., dissenting.

W. H Cameron, of Centralia, and Hayden, Langhorne & Metzger, of Tacoma, for appellant.

C. A Studebaker, of Chehalis, and W. O. Grimm, of Centralia, for the State.

MAIN J.

The defendant in this case is charged with the crime of adultery. It is alleged in the information that the crime was committed on the 9th day of November, 1915, with one Louisa Wirsdorfer, who was then the wife of Mathias Wirsdorfer. At the time alleged, Mrs. Wirsdorfer was living separate and apart from her husband, and was conducting, in the city of Centralia, a rooming house known as the Lenox Hotel. From some time early in the month of September, 1915, until after the offense is alleged to have been committed, the defendant was a roomer and boarder at the hotel. The trial of the defendant, upon the charge stated in the information, resulted in a verdict of guilty. Motion for a new trial being made and overruled, judgment was entered upon the verdict, from which this appeal is prosecuted.

The first question is whether the state offered sufficient evidence to prima facie establish that Louisa Wirsdorfer and Mathias Wirsdorfer had been previously married. Mathias Wirsdorfer testified that he and Louisa Wirsdorfer were married in the year 1892 in the city of Chehalis. After this general testimony as to marriage was offered, the same witness testified as follows:

'Q. Going back to your marriage again, by whom were you married? A. By Maaker. Q. Do you remember his name? A. Yes, sir. Q. His initials? A. Maaker used to be a dentist here.

'Mr. Langhorne: Dr. E. A. Maaker, he used to be a dentist and justice of the peace here.

'Court: I think I have heard of him myself.'

No other evidence of the marriage, nor of the fact that E. A. Maaker was a justice of the peace at the time the ceremony is claimed to have been performed was offered. From this testimony it does not appear that Maaker was a justice of the peace when it is said he performed the marriage ceremony. Where the charge is adultery, marriage is an essential element of the crime. Remington & Ballinger's Code, § 2457; Buchanan v. State, 55 Ala. 154; Banks v. State, 96 Ala. 78, 11 So. 404. In such a case, marriage in fact, as distinguished from one inferable from circumstances, must be proven. Wharton's Criminal Evidence, vol. 1 (10th Ed.) p. 405; Miner v. People, 58 Ill. 59. The reason for this rule is that a marriage, inferable from circumstances, is based upon a presumption, and, in a criminal action, this presumption is met by the stronger presumption of the defendant's innocence. The law upon this question cannot be better stated than by quoting an excerpt from the opinion in the case of Summerville v. Summerville, 31 Wash. 411, 72 P. 84. It was there stated:

'A valid marriage may be presumed to exist from general reputation among the acquaintances of the parties that such is the fact, when that reputation is accompanied by their cohabitation, and arises from their holding themselves out to the world as occupying that relation to which the law refers when marriage is mentioned. Wallace's Case, 49 N. J. Eq. 530, 25 A. 260; White v. White, 82 Cal. 427, 23 P. 276, 7 L. R. A. 799; Murray v. Murray, 6 Or. 26; Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707; Underhill, Evidence, p. 158, § 114. The exception to the rule that marriage may be presumed from evidence of cohabitation and repute is where a public or criminal offense is involved. The exception is based upon the ground that the presumption of marriage without proof of actual marriage cannot overcome the stronger presumption of innocence. White v. White, supra; State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742; Stewart, Marriage and Divorce, section 126.'

Where marriage is an essential element of the crime charged, it is necessary that there be some evidence showing that the person performing the ceremony was authorized to perform such functions at the time. Underhill on Criminal Evidence (2d Ed.) p. 661; State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742; State v. Bowe, 61 Me. 171. In the case last cited, it was said:

'But we do not think the few words uttered by Hannah A. Littlefield amount to proof of a legal marriage on her part. It does not even appear that this marriage was solemnized by any one 'professing' to be either 'a justice of the peace or an ordained or licensed minister of the gospel. * * *''

In the present case, there is no evidence that Maaker was a justice of the peace at the time the ceremony was performed. It is claimed, however, that the statement of counsel for the defendant, as appears in the excerpt from the record, above quoted, amounts to an admission that Maaker was, at the time of the marriage, a justice of the peace. The statement of counsel does not admit that Maaker was a justice of the peace at the time, and was not made as an admission. It was a mere voluntary statement, suggesting that, at one time, Maaker was a dentist and a justice of the peace. An admission, by an attorney, to be binding upon his client, must be distinct and formal, and made for the express purpose of dispensing with the formal proof of some fact at the trial. Greenleaf on Evidence, vol. 1 (16th Ed.) § 186; Encyclopedia of Evidence, vol. 1, p. 561; Treadway v. S. C. & St. P. R. Co., 40 Iowa, 526; Davidson v. Gifford, 100 N.C. 18, 6 S.E. 718.

The case of State v. Nelson, 39 Wash. 221, 81 P. 721, is distinguishable. There the testimony offered tended to show a marriage by a minister of the gospel. But, even though the marriage was not sufficiently proven, it does not follow, in this case, that the action now should be ordered dismissed. At the conclusion of the state's case, the defendant moved that the action be dismissed upon the grounds 'that the evidence is totally insufficient to justify the submission of the case to the jury. * * *' This motion does not invite the court to direct a verdict of acquittal, but is, in form, a motion for dismissal, and is referred to in the briefs as a motion for nonsuit. In State v. Hyde, 22 Wash. 551, 61 P. 719, it was said:

'There can be no nonsuit in a criminal, as in a civil, case.

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