State v. Looke

By tbe Court, Prim, J.: The first ground of error assigned is that of excluding the evidence offered by the appellant. It is claimed tbat the excluded evidence was offered for the purpose of showing tbat the laws of the Chinese Empire relating to the subject [57] of marriage are unwritten laws, and for the further purpose of showing what those laws were. It is urged that this evidence should have been admitted under section 748 of the code, which provides that “historical works, books of science or art, and published maps or charts, made by persons indifferent between the parties, are primary evidence of facts of general notoriety and interest.” The provisions of this section we do not regard as applicable to this class of facts, and especially when we take into consideration section 717 of the code, which provides that “the oral testimony of witnesses skilled therein is admissible as evidence of the unwritten law of a sister state or foreign country, as are also printed and published books of reports of decisions of the courts of such state or country.” Thus it will be seen that it is directly provided by this section, that the unwritten law of a foreign country must be shown by “oral testimony of witnesses skilled therein,” or “by the published reports of the decisions of the courts” of that country. We think there was no error in excluding the evidence offered by appellant. It is further claimed that there was error in the instructions of the court to the j ury. They were instructed as follows: “That as to what the laws and customs of China are upon the subject of marriage was a question of fact for the jury,” and they were allowed to find upon that subject. The court also instructed the jury “ that it was their duty to construe the said agreement in writing, purporting to be a marriage contract, and that it was only admitted as evidence on the ground that it was part of the transaction which was claimed to be a marriage between the said Moy Mow and the said Wong Ho.” The general rule is that courts do not take judicial notice of the laws of a foreign country, but they must be proved as facts. Mr. Story, in discussing the question whether they are to be proved as facts to the jury or to the court in trials at common law, says: “All matters of law are properly referable to the court, and the object of the proof of foreign laws is to enable the court to instruct the jury what, in point of law, is the result of the foreign law to be applied [58] to tbe matters in controversy before them. Tbe court are, therefore, to decide what is the proper evidence of the laws of a foreign country, and when the evidence is given of those laws, the courts are to judge of their applicability, when proved, to the case in hand. But when the evidence consists of parol testimony of experts as to the existence or prevailing construction of a statute, or as t'o any point of unwritten law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony. But when the evidence admitted consists entirely of a written document, statute, or judicial opinion, the question of its construction and effect is for the court alone.” (Story on Conflict of Laws, sec. 638; 99 Mass. 255.) Section 175 of the criminal code provides that “all questions of law, including the admissibility of testimony, the facts preliminary to such admission, and construction of statutes and other writings, * * * * are to be decided by the court.” The construction and legal effect of the written agreement introduced in evidence by appellant was a question of law for the court, which should not have been left to the determination of the jury. And the last instruction of the court, which undertook to submit the construction and legal effect of that written agreement to the jury, was erroneous. The judgment of the court below should be reversed and a new trial awarded the appellant.