Respublica v. Hevice , 3 Wheel. Cr. Cas. 505 ( 1796 )

The indictment stated, that Catharine SpeiS was ati infant 6f thirteen years of age, (her father, Peter Speis, being dead, and Susannah her mother rriarried to Casper Gregor,) a fid under the guardianship of Michael Smyser and Matthias Smyser, both as to person and estate ; and that the" same Catharine was entitled to a large property under her fáther’s will, to wit, £1000, and resided with the said Casper and Susannah, with the consent of her said guardians; and that the said defendants well knowing the premises, ote the 11th August, 1795, did conspire together to'deprive the Said Casper and Susannah of the service of the said Cathariné, and to seduce her from their house, and to inveigle* her into a marriage with the said Michael Hevice, and under divers false pretences did seduce and inveigle the said Catharine for the purposes aforesaid, against the' will of the Said Caspef and Susannah, and of the said Michael and Matthias, and ih pursuance of the said conspiracy did ply the said Catharine with wine and other strong liquors, and she the said Catharine being intoxicated, did procure the ceremonf of marriage’ to be recited between the said Michael Hevice and Catharine Speis, to the great damage and disgrace of the said Catharine, ■ to the evil example of all others in like case offending, and against the peace and dignity of the commonwealth, &c.

Catharine Speis was produced as a witness, on the part of the commonwealth, and was excepted to.

To prove her to be the wife of Michael Hevice, the defendants offered to the court the reverend Frederick Miltzheimer, who had performed the marriage ceremony between' them. They also produced two writs of summons, issued by her guardians against Miltzheimer and Hevice, returnable to September term, 1795, eaéb in debt for 50Z. Hence it was inferred that the marriage was acknowledged by the girl’s guardians, by suits being thus commenced under the act of assembly, for marrying her without their consent or her mother’s. ' They cited Gib. Law. Evid. 252, 253. Husband and wifé are no witnesses for or against each other. 2 Term. Rep. 263. A wife is no witness to criminate her j husband.

The court declared their incompetency to determine! whether there had been a real marriage between the parties.'/ The. indictment charges that the marriage ceremony was recited between them, the girl' having previously been inveigled from, her mother’s house under divers false pretences, and in a state of intoxication. Whether Michael Hevice and Catharine Speis are husband and wife, under all the circumstances of the case, is the peculiar province of the jury, and forms a material part of the present issue. The court will notdraw the matter in aliud exam'en. If the I jury should be satisfied, on the whole of the evidence of the I fairness and legality of the marriage, they will be directed 1 to pay no regard to her testimony. In the present stage of the business, she must he considered as a competent witness5 (1 Vent. 243.) and the clergyman cannot now be examined before the court to prove her incapacity. The . . conduct of the guardians may be urged as expressive of their sentiments, when they brought the two actions, but this will not .validate the marriage, if there was an absence of will on the part of the girl, or unfair management in procuring her presence at the ceremony.

It appeared, that after the supposed marriage, Michael Hevice and Catharine Speis rode back to his farm with another couple xvho were married the same day, where they lay together that evening without any attempt to consummate the marriage. On the next morning she feigned an excuse to come to her step-father’s, but could not be prevailed on to return home with Hevice. She afterwards cautiously avoided his company, xvhen he came to the house, and fled from him.

Un the 30ih September, 1795, upon a full hearing on a habeas corpus returnable before M'Kean, C. J. and Sliippen, J. at York assizes, she xvas permitted to return to her stepfather’s, and was told that Michael Hevice should not molest her, or compel her to live with him.

It was then stated by the counsel on the part of the prosecution, that in the month of December following, Michael Hevice, his brother and brother in-law, took the said Catharine by force from her mother’s house in the night time ; that she resisted and escaped from them, but being overtaken, she was tied on horseback and carried, against her will, half undressed, to the said Michael’s farm, from whence she xvas conducted, with many threats, to a coal hut of the brother-in-law in the mountains, at twenty miles distance, where she was treated with great brutality, and in consequence whereof her life xvas greatly endangered.

This evidence was opposed by the defendant’s counsel, who contended that the offence charged was a conspiracy, and not a forcible carrying away the girl afterwards. This latter offence might be the subject of another prosecution.

But the court ádmitted the evidence to go to the juryj . . . 1 They said, that though the abduction of Catharine Speis was not the point in issue, yet the conduct of Hevice on that occasion threw considerable light on the former transaction. 1 Moreovér, it had been suggested that the girl was fond of hi,m, and married him with her full consent, and was willing to return with him and live as his wife., if she had not been restrained by her friends. Th,e steps which he took in the particulars attempted to be proved, evinced the contrary thereof, and tended to show his sénse of the supposed marriage, and the absence of her will as to any Connection with him.

After a lengthy trial of five days, the jury convicted Miphael Hevice, Frederick Gelvix and Catharine his wife, and acquitted the other defendants of the conspiracy.

Messrs. Duncan, C. Smith, and Clark, pro. repub.

Afessrs.* Hamilton, Bowie, and O’Hartley, pro. def.