OXFORD CIRCUIT. STAFFORDSHIRE SUMMER ASSIZES, 1852. July 23. (Before Mr. JUSTICE WILLIAMS.) REG. v. MITCHELL. (a) Evidence-Map or plan where inadmissible. A map or plan prepared for the purpose of a trial ought not to contain, any reference to transactions and occurrences which are the subjectmatter of the investigation before the court, and not existing when the survey was made; and if it does, and the objection is taken, the court will not allow the jury to look at it. AMES MITCHELL was indicted for the manslaughter of Joseph Harrison, on the 5th of April, 1852, at Blore, alleged to have been occasioned by the negligence of the prisoner in riding over the deceased. At the commencement of the case, a surveyor was called to prove a plan of the part of the turnpike road and houses adjoining, where the transaction occurred. In addition to the names of places, marks were represented on parts of the road and references to them, e. g., "The place where the can of milk was spilt." "Direction in which Harrison was walking," &c. The surveyor having admitted that he did not himself witness any of these occurrences, on the plan being handed to the jury, Huddleston (for the prisoner) objected to the map in its present shape being looked at by the jury, as it contained statements not proved, and incapable of being proved in that_manner. He referred to a passage in Russell on Crimes, by Greaves (vol. 1, p. 649), showing that a map of this kind was inadmissible. WILLIAMS, J., after looking at the map, said it was clearly objectionable, and it was accordingly withdrawn, but was afterwards used, Huddleston waiving the objection. Motteram and Hunt, for the prosecution, submitted that the plan might be used de bene esse. The prisoner was acquitted. (a) Reported by J. E. DAVIS, Esq., Barrister-at-Law COURT OF CRIMINAL APPEAL. November 13, 1852. (Before JERVIS, C.J., COLERIDGE, J., ALDERSON, B., CRESSWELL, J., AND PLATT, B. REG. v. POVEY. Bigamy-Foreign law-Scotch marriage-Expert. On an indictment for bigamy, where it is necessary to prove a Scotch marriage, some witnesses conversant with the Scotch law on the subject of marriage must be called. THE HE following case was submitted to the court by the Common Serjeant of the City of London. At a General Session of Gaol Delivery, holden for the jurisdiction of the Central Criminal Court, on Monday the 25th day of October, 1852, William Henry Povey was tried before me on an indictment charging him with having, at the parish of St. Cuthbert, Edinburgh, in that part of Great Britain called Scotland, feloniously married one Isabella Graham, during the life of Jane, his wife. To prove the marriage in Scotland, a witness was called, who stated that she (being the sister of Isabella Graham above named) was present at a ceremony performed by a minister of a congregation (but whether of the Kirk, she did not know), in the private house of the witness in Edinburgh; that the witness herself was married in the same way, and that parties were always married in Scotland in private houses; that the prisoner and her sister lived together in the witness's house as man and wife for a few days after the ceremony, and then left for England. It was contended, on behalf of the prisoner, that better evidence of the validity of the second marriage according to the law of Scotland should have been given, and that some person sufficiently conversant with that law should have been called, to prove that it was a legal and valid marriage. I, however, left it to the jury to find the prisoner guilty if they would presume, from the facts proved, a marriage valid by the law of Scotland. The jury found him guilty. It appearing to me, however, that the point raised on the trial was one of doubt, and entitled to consideration, I postponed judgment, and committed the prisoner to the custody of (a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law. R. v. POVEY. the keeper of the gaol of Newgate until the next session, in order that your Lordships' opinion might be taken- 1852. Bigamy. Whether the evidence given was sufficient to justify the finding of the jury, or whether some witness conversant with the law of Scotland should have been called to say whether the facts proved constituted a valid marriage according to that law. Parry, for the defendant.-It is necessary, first, to prove a marriage ceremony; and secondly, that it is valid according to the law of Scotland. But no marriage ceremony was proved at all; it was shown that some ceremony was gone through, but there was nothing to establish that it was a ceremony of marriage. Secondly, even if it was intended as a marriage, there is no evidence that it was valid by the Scotch law. The fact of the parties having lived together as man and wife, and the general reputation that they were married, would suffice for some purposes to raise an inference that they were so; but in criminal cases a valid marriage must be substantially proved: (Morris v. Miller, 4 Burr. 2059.) The court cannot take notice of the law of Scotland; it must be proved precisely in the same way as any other matter of fact. But what evidence was there that such a ceremony as was described by the witness constituted a valid marriage in Scotland? She knew nothing whatever of law, which could only be proved by an expert: (Dalrymple v. Dalrymple, 2 Hagg. Rep. 54; Sussex Peerage Case, 11 Čl. & Fin. 85.) JERVIS, C. J.-We happen to know that if a man says to a woman before witnesses in Scotland-" I take you for my wife;" and the woman says "I take you for my husband," and there is a subsequent cohabitation, that will be a valid marriage by the Scotch law; but we cannot judicially take notice that that is so. Parry was then stopped by the court. Robinson, for the Crown.-An expert is not necessary to prove the law of a foreign country. That was decided in Vanderdonet v. Thellusson (19 L. J. 12 C. P.), where the evidence of a merchant was received to prove the law of Belgium relating to bills of exchange. JERVIS, C. J.-There it was rather a question of the custom of merchants than a question of law. On that subject a merchant would perhaps be the best authority. Robinson. The question was as to the law of Belgium. With us the custom of merchants is part of the law of the land, but it does not follow that such is the case in Belgium. The merchant might speak as to the usage of merchants; but if the strict rule. contended for in this case had been adopted, a lawyer would still have been required to prove that such was a part of the law. R. v. Dent (1 C. & K. 97) is a case in point. ALDERSON, B.-The House of Lords, in the Sussex Peerage Case, appears to have overruled that decision of Mr. Justice Wightman, who held that an unprofessional witness might prove the law of Scotland with regard to marriage. 1852. Bigamy. Robinson.-In Vanderdonct v. Thellusson, both those cases were R. v. POVEY referred to, and yet it was distinctly laid down that professional knowledge was not absolutely essential, and that a practical knowledge of the law was sufficient. It would, therefore, be a question for the jury whether this witness had a competent knowledge of the law on this particular subject or not. She was married by the same ceremony herself, and might, therefore, well know that it was a legal form of marriage in that country. COLERIDGE, J.-But the witness does not even say that she is competent to give evidence as to the law of Scotland on the subject. For aught we know, her own marriage may have been invalid. Robinson. There is no direct statement that she knew the law; but it inay be inferred from her evidence that she believed she did, and that she believed the marriage to be a valid one. And there was every reason why she should have made herself acquainted with the subject, both on her own and on her sister's account. The question is, whether for the prosecution a primâ facie case has been made out. In the case of an English marriage, it is never held necessary to prove more than that a ceremony was performed in a church, by a minister who appeared to be a clergyman. The nature of the service is never gone into, nor the authority of the minister to undertake the office, nor the publication of the banns, nor that the parties are not within the canonical degrees of affinity; and yet the legal validity of the marriage would depend upon all these things. In R. v. Hawes (2 Cox Crim. Cas. 432), a marriage in a registered building was held to be primâ facie proved, although no notice to the superintendent registrar, pursuant to the act, was produced or proved. ALDERSON, B.-How can the jury be asked to say that the going through a ceremony is a crime, until they are told what that ceremony is? Robinson. At all events, the prisoner's conduct may be looked upon by the jury as an admission of this being a valid marriage. He evidently intended so to represent the ceremony, and he lives afterwards with the woman as her husband in the house of her sister. Suppose the prisoner had said: "I am legally married to this woman," that would be sufficient: (Truman's case, 1 East, P. C. 471; R. v. Newton, 2 M. & R. 503; R. v. Simmonsto, 1 C. & K. 164.) JERVIS, C. J.-If the prisoner had said that he was legally married, perhaps that would have been sufficient. Robinson. Then it is a question for the jury whether his conduct does not amount to the same thing. There may be admissions by acts as well as by words. JERVIS, C. J.—The question for us is whether there was sufficient evidence to go to the jury, and to justify them in finding the verdict they have done, or whether some witness conversant with the law of Scotland should not have been called to say whether the facts proved constituted a valid marriage according to the law 1852. Bigamy. of that country. This does not raise the question as to whether or not such witness should necessarily be an expert. It may not be necessary in all cases to have a professional person to tell us what a foreign law is, but we are clearly of opinion that some one ought to have been called who understood the law with respect to Scotch marriages. The witness does not profess to know the law, nor does she in fact say that the ceremony was a ceremony of marriage. And the fact of her having gone through the same service carries the case no further. ALDERSON, B.-Reading this case, we cannot tell what the law of Scotland is; and unless we know that, we cannot tell whether or not this was a lawful marriage. Robinson for the prosecution. Conviction quashed. COURT OF CRIMINAL APPEAL. November 13, 1852. REG. v. MANNING AND SMITH. (a) Larceny-Removal by a servant of his master's goods for the purpose of offering them again to the master for sale. If a servant removes his master's goods from one part of the premises to another, for the purpose of enabling another person to offer them to the master for sale as the goods of that third person, and if this be done in pursuance of previous concert and arrangement between them, both may be convicted of larceny. ICHAEL MANNING and John Smith were tried at the Manchester Borough Sessions, on the 5th August, 1852, for stealing on the 17th July, twenty-four bags, the property of John Sheridan. The prosecutor was a potato-dealer, and used bags in that trade, and he also dealt largely in bags which he bought and sold. The prisoner Manning had been for several years in the prosecutor's service, and had the care of his warehouse, in which the bags were kept. The prisoner Smith had for five years regularly supplied the prosecutor with bags, which he made, and from (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. |