State v. Isenhart

Mr. Justice Wolverton, after making the foregoing statement, delivered the opinion of the court. 1. The objection first made is that the court abused its discretion in reopening the cause after the state had rested, and in permitting the introduction of further evidence upon a vital point. The statute prescribes that “the order of proof shall be regulated by the sound discretion of the court”: [173] Hill’s Ann. Laws, § 830. This discretion extends to the reopening of a case in either civil or criminal trials at the request of a party, for the purpose of allowing the introduction of additional evidence: 1 Thompson on Trials, § 348; 1 Bishop on Criminal Procedure, § 966; State v. Porter, 26 Mo. 201. The defendant was not taken by surprise, nor did the further evidence introduced by the state operate as a fraud upon his rights, as he could meet the case made as well upon the reopening as he could have done if fully made in the first instance; and the procedure adopted was undoubtedly within the exercise of a sound discretion. 2. It is next objected that the marriage certificate was not admissible to establish the fact of marriage. The certificate is in every particular . such a one as the statute prescribes shall be given by the person solemnizing the marriage to each of the parties, if they should require it: Hill’s Ann. Laws, § 2857. And while it is not by direct act constituted evidence of the fact, yet we think, when taken in connection with direct proof fixing the identity of the parties, and tending to show that a marriage had been solemnized by a person competent to officiate, and given at the marriage, that it is, when properly identified, admissible as part of the res gestse: 1 Bishop on Marriage, Divorce and Separation, § 1006; Bradner on Evidence 260; State v. Abbey, 29 Vt. 60. 3. It is further contended that the court erred in instructing the jury that the marriage certificate was prima facie evidence of a legal marriage. The [174] instruction goes no further than to say that the certificate is prima facie evidence that a license had been duly issued, and that a marriage ceremony had taken place in pursuance of such license, which was styled a legal marriage, and, therefore, that the certificate was prima facie evidence of such a marriage. It does not appear to have been intended as an instruction that the certificate established prima facie a marriage between competent parties mutually assenting, and otherwise lawful in all things that go to make up a valid marriage under the statute, but was given in view of the fact that no license was offered at tíre trial, it being insisted that the production of such license was essential to the establishment of the marriage relation. Other testimony was submitted, as we have seen, tending to prove the fact of marriage, the competency of the parties, and their identity; and this, we presume, was properly submitted to the jury, along with the certificate, for their consideration. The instruction was probably well understood, and there was no error in giving it. The fact that the name Mary E. Ewing appears as Mary A. Ewing in the certificate was susceptible of explanation, and it was competent to otherwise establish her identity. Affirmed.