Lowery v. People

Mr. Justice Cartwright delivered the opinion of the court: Plaintiff in error was convicted in the Criminal Court of Cook county of the crime of bigamy, upon an indictment charging that he was lawfully married on June 23, 1892, to Clara E. Squier at Milwaukee, in the State of Wisconsin, and that afterwards, on February 14, 1896, at Columbus, in the State of Ohio, he unlawfully married Annie May Quinnell. At the trial the second marriage with Annie May Quinnell, and the fact that defendant resided with her as his wife in Cook county, Illinois, from March, 1896, to June, 1897, were conclusively proved and not controverted. The evidence as to the first marriage consisted of testimony that defendant and the alleged first wife lived together as husband and wife in Chicago previous to the second marriage, and while so living together he called her his wife, and said that they had been married in Milwaukee, Wisconsin, and showed what purported to be a marriage certificate. Defendant, claiming that evidence of that kind was insufficient to convict him, asked the court to give to the jury the following instruction: “The jury are instructed that the defendant cannot be convicted of the crime charged where the only evidence of the first marriage charged is proof of cohabitation of the defendant and the alleged first wife as man and wife, and that they had stated that such marriage had taken place.” Where the relation of husband and wife has been assumed the law generally presumes in favor of a lawful marriage; but where it is charged that two successive marriages have taken place the presumption in favor of the legality of each is equal, and an actual marriage must be proved. In this case, the presumption that would ordinarily obtain in favor of the first marriage is met by an equal presumption in favor of the legality of the second marriage, and therefore it was incumbent on the prosecution to show the first marriage to be a marriage in fact. This proof of an actual marriage may be made, however, as of any other fact. Our statute provides that it shall not be necessary to prove either of the marriages by the register or certificate or other record evidence, but the same may be proved by such evidence as is admissible to prove a marriage in other cases. (Rev. Stat. sec. 29, chap. 38.) In Jackson v. People, 2 Scam. 231, it was said that the object of this statute was to let in an inferior grade of evidence, and that it was discretionary with the State’s attorney as to the kind of evidence he would use. It has been held in some cases that admissions of the defendant of a marriage in fact, though supported by proof of cohabitation and reputation as husband and wife, are not sufficient to prove the fact of marriage, but the great weight of authority is adverse to that position. We can see no reason why an admission or declaration of the defendant of the fact of his marriage should not rest on the same footing as an admission of other facts essential to establish his guilt. There can be no reason for discriminating in such a case, and exempting one fact from the rules of evidence applicable to others. The statement of the defendant may be as conclusive and satisfactory as any other proof of his marriage, and as to that question the jury is to determine. The fact need not be proved by direct evidence, but may be established, like any other fact, by admissions of the defendant. (Miles v. United States, 103 U. S. 304; Regina v. Simmonsto, 1 Car. & Kir. 164; Wolverton v. State, 16 Ohio, 173; Oneale v. Commonwealth, 17 Gratt. 583; Williams v. State, 54 Ala. 131; Halbrook v. State, 34 Ark. 511; Commonwealth v. Jackson, 11 Bush, 679; Squire v. State, 46 Ind. 459; Dale v. State, 88 Ga. 552; Commonwealth v. Hayden, 163 Mass. 453.) In Tucker v. People, 117 Ill. 88, the admission of the defendant was deemed competent evidence so far as it went, but it was not sufficient to prove the charge in the indictment, and in Hiler v. People, 156 Ill. 511, the evidence was simply of cohabitation and reputation as man and wife, without any admission of a marriage in fact, and it was held that such a marriage had not been proved. It is always held in prosecutions for bigamy, that the marriage cannot be proved by cohabitation and reputation merely, for the reason \ already given, but it may be proved by the kind of evidence in question here if sufficient to establish the fact, and it was not error to refuse the instruction. The second wife, Annie May Quinnell, whose marriage with defendant was proved and not controverted, was allowed to testify against the objection of defendant, and gave evidence tending to establish the fact of the first marriage with Clara B. Squier. She testified that defendant told her, after they were married, that he and the alleged first wife went to some town a short distance from Chicago and went through some marriage ceremony. Greenleaf lays down the rule that if the first marriage is clearly proved and not controverted, then the person with whom the second marriage was had may be admitted as a witness to prove the second marriage, as well as other facts not tending to defeat the first or to legalize the second, but that she ought not to be admitted at all if the first marriage is still a point in controversy. (3 Green-leaf on Evidence, sec. 206.) In Miles v. United States, supra, it is said that it is only in cases where the first marriage is not controverted, or has been duly established by other evidence, that the second wife is allowed to testify; that she is never competent to prove the first marriage, for she cannot be admitted to prove a fact to the jury which must be established before she can testify at all, and that in cases where she can testify she may be a witness to the second marriage, but not to the first. The same rüle is laid down in 4 Am. & Eng. Ency. of Law, (2d ed.) 47. In this case the only controverted question is tlje fact of the first marriage, and the court clearly erred in allowing Annie May Quinnell to testify as a witness. For this error the judgment must be reversed. The judgment is accordingly reversed and the cause remanded. Reversed and remanded.