State v. Libby , 44 Me. 469 ( 1858 )

Appleton, J.

This was an indictment for adultery. To prove the marriage the prosecuting officer introduced several witnesses, who testified that they “ had heard the defendant say he had a wife and family, and that he had sent for them;” that after their arrival “he introduced. Mrs. Libby as his wife, or as Mrs. Libby;” “ that they occupied one bed-chamber;” “ that he had three daughters;” and in one case he said he “wanted board for his wife and youngest child;” that “he boarded at the house of the witness with his supposed wife and child;” and that he usually called the person whom he introduced as his wife or Mrs. Libby, by her Christian name. This evidence was objected to, and after being received, the counsel for the accused requested the court to instruct the jury that it was insufficient to prove the fact of marriage.

The request of the counsel was denied, and the court instructed the jury that “ if from all the testimony in the case introduced for the purpose of proving the marriage of the defendant, they were satisfied beyond a reasonable doubt that he was legally married, and his wife to whom he was legally married was living at the time of the crime alleged to have been committed, they were authorized to find the fact of marriage.”

The instruction given was clearly correct, and the evidence to which objections were taken, was properly admissible. If confessions are admissible to prove the commission of a crime, they are equally so to prove a portion of the facts which enter into and constitute the crime. If they are admissible to prove sexual intercourse — a fact essential to sustain the charge, they must be to prove the marriage. It would be absurd to admit a confession of sexual intercourse, and refuse the confession of a marriage, without proof of which, the offence would be differently classified, though belonging to the same general description of delinquency.

Accordingly it was held in Damon’s Case, 6 Greenl. R., 148, that proof by witnesses who saw the marriage is prima facie sufficient, on an indictment for bigamy. In Cayford’s Case, 7 Greenl. R., 57, this court decided that the prisoner’s confession of the marriage, if it took place in another state, was sufficient, and gave a strong intimation that such evidence might be received, if the marriage was in this state. In Ham’s Case, 11 Maine R., 391, the same question arose in the case of a domestic marriage, and it was determined that the marriage to be proved, wherever solemnized, might be shown by the confessions of the prisoner, deliberately and voluntarily made.

This question again arose in State v. Hodgkins, 19 Maine R., 155, and it was there held that a marriage in fact, as distinguishable from one inferable from circumstances, must be proved; but the principle'of law, that the confession of an adulterer of his marriage, deliberately and understandingly made, is receivable in evidence, was not denied, much less overruled. But the confessions once made, and under circumstances which render them admissible, it is for the jury to determine the just degree of confidence which they may place in them. The weight to be given to the testimony is especially for their consideration.

It was held in State v. Winkley, 14 N. H. R., 481, that a marriage in fact must be proved, and that it might be proved by any one present. But if provable by any one present, it is not readily perceived why the confessions of the person married are not equally satisfactory proof of the fact, in proceedings against him. Sales reum confidentem.

It is urged that the confessions may have been improvidently made, and that the prisoner, not married, may yet have confessed to a marriage. If so, still the possibility of the untruth of confessions, affords no reason for their exclusion. Such possibility would exclude all proof of this nature. If so, the defendant has little cause of complaint, as he is convicted because the jury placed too much reliance upon statements made by him.

Any regrets which naturally arise from the contingent though possible infliction of a misplaced punishment, will be somewhat lessened by the fact, that if the woman introduced by the defendant as his wife, and with whom he had lived as such for years, and by whom he had become the father of children, whom he recognized as his own, was not in fact his wife, that she was a competent, though she may be reasonably supposed to be a reluctant witness, by whom he could have disproved the prima facie case made out against him by his confessions.

No evidence of reputation appears to have been offered. The confessions of the defendant and his acts corresponding to those confessions, were properly received in evidence.

The instruction, that if the person with whom the adultery was alleged to be committed was as well known by the name of Vesta Brown as by that of Vesta A. Brown, they would be warranted in finding that the offence, if committed, was committed with Vesta Brown, was correct. By the testimony, it appeared that she was known by different names. The jury found she was as well known by one as by the other name.

Exceptions overruled.

Tenney, C. J., Cutting and Hathaway, J. J., concurred; Rice and Goodenow, J. J., concurred in the result.