Conduct.-Evidence of the conduct of the defendant holding himself out as a married man generally accompanies that of general reputation and cohabitation. The courts that admit this evidence proceed on the ground that actions on the part of a man tantamount to a confession ought to be received as such; and it should be noticed that these courts regard acknowledgment of marriage to be competent evidence, which point will be considered later. They hold that it is better for public morals that a man should, even for the purposes of criminal prosecution, be deemed the husband of a woman with whom he has consorted as husband, than that the law should assume that he was living in lewdness with her, and permit him to take upon himself other marital obligations. Therefore, they say that a man ought to be estopped to say that she is not his wife with whom he has lived as husband, toward whom he has assumed the duties of such relation, and by whom he has brought children into the world. On these grounds evidence of reputation, cohabitation and of conduct of the defendant holding himself out as a married man, has been deemed sufficient to sustain a conviction. The contrary decisions proceed on the ground that this evidence is from its nature inadmissible because, if accompanied with direct proof of a marriage in fact, it is unnecessary, and if not so accompanied then wholly insufficient. In [a Minnesota case, where the question considered was, whether, in addition to the direct evidence of a witness to the ceremony, indirect or circumstantial evidence, as of cohabitation, repute, conduct of parties, and birth of children is admissible on the question of marriage in criminal prosecutions, the court said: "Direct and positive evidence of an actual marriage in fact, being indispensable, it is difficult to see what useful purpose could be subserved by indirect evidence not sufficient in itself. If the direct evidence does not es

10 Allen, 196; Crane v. State (Tenn.), 28 S. W. Rep. 317; Dale v. State (Ga.), 15 S. E. Rep. 287; State v. Britton, 4 McCord (S. Car.), 256; Taylor v. State, 52 Miss. 84.

14 United States v. Higgerson, 46 Fed. Rep. 750; Buchanan v. State, 55 Ala. 154; Wood v. State, 62 Ga. 406; Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225; Com. v. Holt, 121 Mass. 61; State v. Cooper (Mo.), 15 S. W. Rep. 327; State v. Ulrich (Mo.), 19 S. W. Rep. 656; State v. Nadal (Iowa), 29 N. W. Rep. 451; Finney v. State, 3 Head, 546.

Admissions and Confessions.-The general principle is that an admission or confession, voluntarily made, is evidence which a court will never hesitate to receive as tending to prove the offense charged; but some courts hold that in those prosecutions where it is necessary to prove a marriage in fact there is an exception to the rule. Thus, in a prosecution for bigamy, where it is necessary to allege and prove two distinct marriages, and that at the time of the second marriage the accused had a former husband or wife living, the former marriage must be proved by the production of the record of the marriage, or by a witness present at its solemnization or ceremony, and the admissions and confessions are not to be received as evidence of this point. These cases rest on the expressions of Lord Mansfield in Morris v. Miller and Birt v. Barlow." 18 But those actions were for criminal conversation and the weight of authority holds that the strict rule there laid down should be restricted to that particular form of action.19 In a leading case the court says: "It is evident that a distinction is to be made between the proof necessary to sustain an action for criminal conversation and an indictment for bigamy, lascivious cohabitation, or seduction. In the former the plaintiff seeks to recover damages for the loss of comfort derived from the society of his wife. The fact of the plaintiff's marriage is peculiarly within his own knowledge. If the

17

15 State v. Johnson, 12 Minn. 476, 93 Am. Dec. 241. To the same effect: State v. Roswell, 6 Conn. 446; Com. v. Littlejohn, 15 Mass. 163; People V. Humphrey, 7 Johns. 314.

16 People v. Stokes (Cal.), 12 Pac. Rep. 71; Johnson v. State (Ark.), 30 S. W. Rep. 31.

17 State v. Roswell, 6 Conn. 446; People v. Hum. phrey, 7 Johns. 314; Haves v. People, 25 N. Y. 396; Gahagan v. People, 1 Park. Cr. 383; State v. Johnson, 12 Minn. 476, 93 Am. Dec. 241.

18 Doug. 171.

19 West v. State, 1 Wis. 209; Williams v. State, 54 Ala. 24, 25 Am. Rep. 665.

woman seduced be not in fact his wife, though he may have cohabited with her almost a lifetime as such, in contemplation of law he has sustained no injury or loss, and has no claim for damages. Hence the necessity that the plaintiff shall establish by irrefragible, unquestionable proof, the social relation, by the abruption of which he declares himself injured, and for which he seeks compensation. Not so in the prosecution by the government for bigamy. Not so in a prosecution for lascivious cohabitation, or in an indictment for seduction. In these latter cases it is the marriage of the defendant himself which is essential to the constitution of the offense. The fact is peculiarly within his own knowledge. Why, then, should not his solemn, deliberate declarations or confessions of the fact be received in evidence?''20 In an early Kentucky case the court says: "It is difficult to perceive any reason for discriminating between admissions to prove a marriage and other facts essential to constitute the legal guilt of the accused; there can be no more danger of doing injustice in receiving such evidence in the class of cases under consideration than in any other."21 Allowing evidence of the declarations of the prisoner, and the fact that he has recognized and cohabited with the woman to whom he is alleged to be married, prevents giving "comparative immunity to this detestable crime by obstructing the path of the prosecutor with a rule of evidence which it is believed would render conviction impossible in a large majority of cases where the moral evidence of guilt is conclusive."'22 In some States extrajudicial confessions or statements out of court are not admissible,23 and, generally speaking, "such admissions, when offered in proof of marriage, on a trial for adultery, are to be received with caution and are entitled to greater or less weight according to the time, place and circumstances under which they are made. If made before the offense, and for purposes entirely foreign to the offense, and not to the prejudice of the party making them, they may, though ad

20 West v. State, 1 Wis. 209.

21 Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225. 22 Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225. 23 People v. Edwards, 25 N. Y. S. 480; People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49; People v. Isham (Mich.), 67 N. W. Rep. 819.

missible, be deserving of little or no credit."'24 "Declarations of the defendant made idly, or with a view to shield himself from prosecution or public censure, while living in a state of concubinage-such as introducing the woman with whom he cohabits as his wife, acknowledgments of the relation of husband and wife, and the like, are not receivable in evidence, nor the common reputation of that relation which naturally springs from cohabitation. So, also, declarations made to parry social criticism, or to avoid legal inquisition, are of little or no weight. But marriage in fact is the point to be established by proof. A confession, therefore, of the fact of marriage, not of the relation of husband and wife, by assuming its characteristics; a distinct, unequivocal confession, seriously and solemnly made, of the fact of the marriage rite having been performed; such a distinct reference to the ceremony or occasion of the marriage, as an event, it would seem, ought to be admitted, and if by the jury believed to have been made truly and sincerely, and not to evade the consequences of an illegal cohabitation, should be held sufficient." 25 The objections urged that the admissions may have been lightly made, or stated by parties for the purpose of avoiding public censure or public prosecution, are reasons which go to the credibility rather than to the competency of the testimony, according to some of the

24 State v. Medbury, 8 R. T. 543.

25 West v. State, 1 Wis. 209. To the same effect: Coleman's Case (N. Y.), 6 City Hall Rec. 3; Langtry v. State, 30 Ala. 536; State v. Armington, 25 Minn. 29; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Green v. State, 59 Ala. 68; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State v. Cooper, 108 Mo. 266, 15 S. W. Rep. 327; State v. Hilton, 3 Rich. (S. Car.) 434, 45 Am. Dec.. 783; State v. Nadal (Iowa), 29 N. W. Rep. 451; Cameron v. State, 14 Ala. 546; Dumas v. State, 14 Tex. Ct. App. 464, 46 Am. Rep. 241; Crane v. State (Tenn.), 28 S. W. Rep. 317; State v. Britton, 4 McCord (S. Car.), 256; State v. Sherwood (Vt.), 35 Atl. Rep. 352; Com. v. Thompson, 99 Mass. 444; U. S. v. Simpson (Utah), 7 Pac. Rep. 257; State v. Jenkins (Mo.), 41 S. W. Rep. 220; Lowery v. People (Ill.), 50 N. E. Rep. 165; State v. Hughes, 35 Kẩn. 626, 57 Am. Rep. 195; State v. Ulrich (Mo.), 19 S. W. Rep. 656; People v. McQuail, 85 Mich. 127, 48 N. W. Rep. 161; Stanglein v. State, 17 Ohio St. 453; People v. Imes (Mich.), 68 N. W. Rep. 157; People v. Broughton (Mich.), 13 N. W. Rep. 621; State v. Milton (N. Car.), 26 S. E. Rep. 933; Owens v. State (Ala.), 10 South. Rep. 669; State v. Plym (Minn.), 45 N. W. Rep. 848; State v. Gallagher (R. I.), 38 Atl. Rep. 655; Reg. v. Simmonston, 1 Car. & Kir. 164; Finney v. State, Head (Tenn.), 546; Taylor v. State, 52 Miss. 84.

consensual marriages were not recognized as valid in the places where these were contracted. The better rule seems to be as stated in Warner v. Com.:34 "Where the first marriage was established by a person who, from all the circumstances of the case, must reasonably be presumed to have filled a character authorizing him to do so, and who was recognized as the proper officer by the person accused himself, and the company present at the time, and further proof that after the ceremony the parties lived publicly together as man and wife, it is as good evidence as in such a case a prosecutor can reasonably be expected to produce, and, if not impugned by other testimony, is proper, competent and sufficient evidence, so far as that goes, to convict the accused.''

Documentary Evidence.-Where the law makes marriages a matter of public record, the record, or an exemplified copy of it, is certainly proper evidence of the marriage. This is because the law presumes that its public sworn officers do their duty, and, therefore, when it commands any of them to keep a register of marriages, that what they therein set down as a fact is, if it is one which they are required to record, accepted in evidence as prima facie true. But it must appear that the records were authorized by law, and the identity of the persons must be shown. There is little discussion as to evidence of this character, the decisions uniformly holding that where the record is so accompanied with proof of authority and identity of parties, it is competent as tending to establish a marriage in fact.36 The cer

34 2 Va. Cas. 95.

35 State v. Goodrich, 14 W. Va. 834; Bird v. Com., 21 Gratt. (Va.) 800; State v. Abbey, 29 Vt. 60; People v. Calder, 30 Mich. 85; Com. v. Norcross, 9 Mass. 492; Com. v. Hayden (Mass.), 40 N. E. Rep. 846; State v. Robbins, 6 Iredell's Law, 23, 44 Am. Dec. 64; Lord v. State (Neb.), 23 N. W. Rep. 507; Murphy v. State, 50 Ga. 150; Dale v. State (Ga.), 15 S. E. Rep. 287; State v. Kean, 10 N. H. 347; State v. Winkley, 14 N. H. 480; State v. Clark, 54 N. H. 446; Rex v. Brampton, 10 East, 282; Hayes v. People, 25 N. Y. 300; Flemming v. People, 27 N. Y. 329; Taylor v. State, 52 Miss. 84; Robinson v. Com. (Ky.), 6 Bush, 309.

36 State v. Wallace, 9 N. H. 515; Faustre v. Com. (Ky.), 17 S. W. Rep. 189; Com. v. Hayden (Mass.), 40 N. E. Rep. 846; Wedgwood's Case, 8 Me. 75; Tucker v. State, 117 Ill. 88, 7 N. E. Rep. 51; Stanglein v. State, 17 Ohio St. 453; People v. Imes (Mich.), 68 N. W. Rep. 157; People v. Stokes (Cal.), 12 Pac. Rep. 71; Johnson v. State (Ark.), 80 S. W. Rep. 31; State v. Matlock (Iowa), 30 N. W. Rep. 495.

tificate of marriage, when properly authenticated, may be given in evidence. But as this is not a document that authenticates itself, the signature of the minister must be proved. 37 The record book of the person performing the ceremony has been admitted, together with other circumstantial evidence, as tending to establish a marriage in fact.38 Also, the marriage license and the return thereon by the person solemnizing the marriage is admissible.3 A copy of divorce proceedings, or a decree of divorce, to which the accused was a party, may be offered in evidence, not "to show the divorce, but simply to show that up to that time the parties were husband and wife. And this furnishes an additional reason for not requiring anything more than the decree to be produced. It establishes the fact that the parties to the cause were up to the date of that decree husband and wife, as effectually as the whole copy of this record could have done. ''40 Letters of the defendant to the person to whom the defendant was alleged to be married, in which such person was addressed as husband or wife, as the case might be, or in which the defendant admitted the relation, have commonly been admitted, 41 as has also a marriage contract purporting to have been signed by the contracting parties at the time of their alleged marriage.42

Where Marriage Has Taken Place in Another State or Abroad. —It is a well known rule that foreign laws are to be proved as

37 Jackson v. People, 3 Ill. (2 Scam.) 231; People v. Broughton, 49 Mich. 339, 13 N. W. Rep. 621; State v. Isenhart (Oreg.), 52 Pac. Rep. 569; State v. Abbey, 29 Vt. 60; Wedgwood's Case, 8 Me. 75; Steer's Case, 2 City Hall Rec. (N. Y.) 111; Moses v. Comstock, 4 Neb. 519; Taylor v. State, 52 Miss. 84; Com. v. LittleJohn, 15 Mass. 163; U. S. v. Simpson (Utah), 7 Pac. Rep. 257; State v. Behrman (N. Car.), 19 S. E. Rep. 220.

38 State v. Melton (N. Car.), 26 S. E. Rep. 933; Steer's Case, 2 City Hall Rec. (N. Y.) 111.

89 Squire v. State, 46 Ind. 459; State v. Davis (N. Car.), 14 S. E. Rep. 55; Jackson v. People, 3 Ill. (2 Scam.) 231; Taylor v. State, 52 Miss. 84; Tucker v. People (Ill.), 13 N. E. Rep. 809; Thomas v. State (Tex.), 26 S. W. Rep. 724.

40 State v. Goodrich, 14 W. Va. 834. To same effect: Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State v. Gonce, 79 Mo. 600; Adkisson v. State (Tex.), 30 S. W. Rep. 357.

41 People v. Imes (Mich.), 68 N. W. Rep. 157; Com. v. Caponi (Mass.), 30 N. E. Rep. 82; Com. v. Hayden (Mass.), 40 N. E. Rep. 846; State v. Nadal (Iowa), 29 N. W. Rep. 451.

42 State v. Behrman (N. Car.), 19 S. E. Rep. 220.

facts before our tribunals, and when it becomes necessary to prove a marriage in fact, it would seem to follow that the allegation should be accompanied by proof of the foreign law and the two should be proven together. Yet, according to some authorities, the strict enforcement of this rule would create immense trouble, being at times a matter of great difficulty. The conclusion of Mr. Bishop is that whenever two apparently marriageable persons enter into a contract, or go through a form of solemnization which purports to be a marriage, and nothing is presented to throw discredit on the proceedings, the foreign law will be presumed, prima facie, to make the marriage legal.43 Accordingly, some of our States do not require proof of the foreign law of marriage when there is no evidence of irregularity, and a prior marriage, which has taken place in another State or country, may be proved in the same manner and by the same evidence as a domestic ceremony, and some courts requiring the production of the record for domestic marriage relax the rule as to foreign marriage. The court says, in Williams v. State: "Of a foreign marriage there cannot be record evidence within the power of the State to produce. If such evidence exists it is without the State and beyond the jurisdiction of the court. There would be a reason, therefore, for requiring record evidence of a marriage in this State not existing when the marriage occurred in a foreign State. ''45 But, generally, the laws of a sister State or foreign country must be proved. All records should be shown to have been made and kept by authority of law, and the ceremony should be shown to have been legally observed. This does not, however, preclude the admission of circumstantial evidence of the marriage. But a legal marriage should be shown to have taken place in order to sustain a conviction. Especially is this true where there is proof as to what the steps of a foreign marriage are. In such a case, if a compliance with the provisions of the foreign law is essential, there

43 Bishop on Marriage, Divorce and Separation, sec. 1119.

44 54 Ala. 131, 25 Am. Rep. 665.

45 Murphy v. State, 50 Ga. 150; Dale v. State (Ga.), 15 S. E. Rep. 287; Crane v. State (Tenn.), 28 S. W. Rep. 317; Lord v. State (Neb.), 23 N. W. Rep. 507; Reg. v. Newton, 2 Moody & R. 503.

46

must be evidence of such compliance. And the presumption of regularity will not be entertained where the act sought to be established by the aid of such presumption, and essential to the validity of the marriage, has no logical connection with admitted facts in the case. A leading case, illustrative of this point, is Weinberg v. State. Here, on an indictment for bigamy, where the first alleged marriage occurred in Prussia, it appeared that by the Prussian law a marriage to be valid must be entered into as a civil contract before a civil magistrate, before the religious ceremony, which was usually solemnized, should take place. The celebration of such religious ceremony without the civil marriage was prohibited under severe penalties. In this instance only the religious ceremony was. shown, and from this fact the prosecution urged that the prior marriage should be presumed, claiming that those engaged in it would have been guilty of crime had not the other been performed; the presumption of their innocence would sustain the inference of its performance. But it would also have shown the guilt of the defendant in the second marriage, for which he was on trial. The court rejected this conclusion on the ground that there was no logical connection between the two facts, and on account of the presumption of the innocence of the accused.

Conclusion.· -The judicial decisions are very much at variance as to what is, or is not, admissible to prove a marriage in fact in criminal cases. It is, therefore, impossible to state any definite rule of evidence that would be applicable to all jurisdictions. Much confusion seems to have arisen, because in the early cases of several of the States the courts misconceived the import of certain English cases, which were relied on as authority, and which were, in fact, cases of a different nature than the class under discussion. They construed these cases as limiting the kinds of evidence necessary to prove a fact of marriage, while a close study of the subject will convince one that it is not

46 Canale v. People (III.), 52 N. E. Rep. 310; Faustre v. Com. (Ky.), 17 S. W. Rep. 189; Tucker v. People, 117 Ill. 88, 7 N. E. Rep. 51; Stanglein v. State, 17 Ohio St. 453; People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49; People v. Imes (Mich.), 68 N. W. Rep. 157.

47 25 Wis. 370.