Patterson v. State

17 Tex. Ct. App. 102, 1884 Tex. Crim. App. LEXIS 178

• Court: Court of Appeals of Texas
• Decided: November 5, 1884
• Docket: No. 1672
• Status: Published

Opinion

White, Presiding Judge.

This is an appeal from a judgment of conviction for bigamy. On the trial the State was permitted, over objections of defendant, to read a certified copy of sections 1, 7, 8, 9, 16 and 18 of Title XXVIII, Chapter OLXIX, of the laws of the State of Michigan, relating to marriage and the solemnization thereof. Attached to this copy was the following certificate, viz. s

“ Tiie State of Texas,

“ Department of State.

“ I, J. W. Baines, Secretary of State of the State of Texas, do certify that the foregoing are true copies of sections 1, 7, 8, 9, 16 and 18 of Chapter CLXIX, Title XXVIII, concerning marriage and the solemnization thereof, as contained in the compiled laws of the State of Michigan, purporting to have been compiled by State authority in the year A. D. 1872; said volume being now on deposit in this department, and received by due course of exchange. Witness my official signature and seal,” etc. Signed, J. W. Baines, Secretary of State, with seal attached.

Two objections were urged to the introduction of this certificate as evidence. 1. Because, under the Constitution of the United States and of this State, providing that an accused must be confronted with the witnesses against him, such evidence was inadmissible against him. 2. Because said certificate only purported to contain a portion of the laws of Michigan regulating marriage in that State, and that said purported copy shows on its face that sections 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15, 16 and 17 of said law are omitted.

As to the first objection, the act of Congress provides for the exemplification and authentication of State laws. (1 U. S. Stats, at Large, p. 122; Brightley’s Dig. of Laws of U. S., p. 265; Pase. Dig., arts. 3709, 3710.)

Our statutes provide that “the printed statute books of this State, of the United States, of the District of Columbia, or of any State or Territory of the United States, or of any foreign government, purporting to have been printed under the authority thereof, shall be received as evidence of the acts and resolutions therein contained.” (Rev. Stats., art. 2250.)

“ A certified copy, under the hand and seal of the Secretary of State, of any act or resolution contained in any of such printed statute books deposited in his office, or of any law or bill, public or private, deposited in his office in accordance with law, shall be received as evidence thereof.” (Rev. Stats., art. 2251.) Laws of a. State, ünder these provisions, when offered as evidence, are not subservient to, or within the purview of, the rules which apply to proofs of private documents. They are exceptional, and, if paroi evidence with regard to them is admissible at all, it must be on some-ground peculiar to the subject of foreign laws. (1 Greenl. Evid.,. §§ 488, 489.) The written law of another State cannot be proved by paroi in Texas. (Martin v. Payne, 11 Texas, 294.) The identical question before us was made in The People v. Jones, and the-supreme court of Michigan said: “We do not think the provision of the Constitution securing to the defendant in a criminal prosecution the right ‘ to be confronted with the witnesses against him ’ can apply to the proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a copy officially authenticated in some way, especially when the fact to be proved comes up collaterally, as in the present case. In such a case it would in fact be impossible to apply it, except by requiring the attendance and testimony of the Secretary of State to the fact of the filing of the papers, etc. (statute laws), to which he has certified. We have been cited to no case, and are not aware of any, which would authorize us to reject the certificates on this, ground.” (24 Mich., 215.) This court has enunciated the same doctrine, with regard to documentary proof, in Rogers v. The State, 11 Texas Ct. App., 608, and May v. The State, 15 Texas Ct. App., 430.

As to the omission of certain sections of the Michigan law in the certificate of the Secretary of State, such omission will not invalidate the certificate as to the sections given therein, and, in the absence of proof to the contrary, we are warranted in holding that the sections copied into the certificate are all the sections relating to. the rites of marriage and its solemnization in Michigan. Those copied into and embraced within the certificate appear to us amply sufficient for an understanding of the Michigan law, so far as necessary to be understood and applied to the questions raised by the facts in this case. From the sections of that law, as copied, we find that section 7 authorizes justices to solemnize marriages in their respective counties, and to make certificate of the fact. By section 18 it is provided that “ the original certificates and records of marTiage made by the minister or justice, as prescribed in this chapter, and the record thereof made by the county clerk, or a copy of such record duly certified by such clerk, shall be received in all courts and places as presumptive evidence of the fact of such marriage.”

Having proved the law, the prosecution then offered in evidence ■a copy of the certificate of Thos. A. Paine, justice of the peace, to the effect that he had, on the evening of the 27th of October, 1SG6, in the township of Manistee, State of Michigan, united in marriage Hugh Patterson and Mrs. Ann Maria Cowen. To this copy of the marriage certificate was attached^ the official certificate of Baxter, the county clerk of Manistee county, certifying that the copy of the marriage certificate had been compared by him with the original record in his office, and that the same was a correct transcript therefrom, and the whole of such original. Two other attached certificates were those of the Secretary of State of Michigan,— one certifying to the official character of Paine as justice at the date of said marriage,— the other being a similar certificate as to the election and qualification of Baxter as county clerk of Manistee county.

Defendant’s objections to the justice’s certificate were: “1. Because said certificate is not competent evidence of the marriage of defendant and Ann Maria Cowen in a foreign State. 2. Because said certificate, with its accompanying certificate of Baxter, county clerk, shows on its face that it is a copy and not the original certificate of the justice. 3. Because no loss or absence of the original had been shown or accounted for. 4. Because the said certificate was •not filed in the case until after commencement of the trial; nor had any previous notice of filing the same been given defendant or his counsel. 5. Because said justice’s certificate, though it had been the original certificate of marriage in another State, could not be used in evidence in a criminal trial in this State until the laws of such other State are proven and shown to confer such authority upon a justice of the peace.”

As to the last two objections, which will first be noticed, we have already seen that the laws of Michigan were proven up by the certificate of the Secretary of State of Texas, and that those laws expressly conferred upon a justice of the peace authority to solemnize the rites of matrimony in that State.

Should the certificate have been filed three days before trial and notice of such filing been given, in order to make it admissible as evidence in the case? Such is unquestionably the rule with regard to deeds and instruments of like nature, both in civil and criminal cases; the filing and previous notice being designed to obviate the necessity for proof of the execution of the instrument, and the statute further contemplates that such instruments, filed with notice, when offered in evidence shall be free from the taint of forgery. (Johnson v. The State, 9 Texas Ct. App., 249.)

But this rule of practice does not apply to official certificates of records of another State. These, when they have been properly authenticated under the acts of Congress, are by the terms of the law declared entitled to such faith and credit throughout the United States as they have by law or usage in the courts of the State from whence the said records are and have been taken. (Pose. Dig., arts. 3709 and 3710.) Such certificates import verity and are not required to be proven up. (1 Greenl. Evid., §§ 488, 489.) We have already seen by the eighteenth.section of the Michigan law, as quoted above, that a copy of a marriage certificate, “ or the record of the same-duly certified by the county clerk,” it is declared, “ shall be received in all courts and places as presumptive evidence of the fact of such marriage.”

The second and third objections are that the justice’s certificate, as offered, was a copy of an original, which original not having been shown to be lost, a copy could not be used. Mr. Greenleaf says, “ the weight of authority seems to have established the rule that a copy given by a public officer whose duty it is to keep the original ought to be received in evidence.” (1 Greenl. Evid., § 485.) Under the Michigan law, the county clerk was the proper custodian of the original marriage certificate.

We have reserved for the last to be considered defendant’s first ground of objection to the certificate, because the most serious and important. The question it presents is whether or not such a certificate of a marriage solemnized in another State is admissible as evidence, and competent to prove the fact of such marriage on a trial for bigamy in this State?

First, was it admissible as evidence? This precise point came up in The People v. Lambert, 5 Mich., 349, which was a trial on a charge of bigamy,— the lower court having admitted as evidence a certificate from Hew Jersey of the first marriage. The court say: “ The certificate of marriage, even if the law of Hew Jersey had been proved, was improperly admitted in evidence. Without deciding whether the act of Congress can be made to apply to such documents at all, we can discover no ground upon which this certificate could be received in a criminal case. By the English law a register of marriage is not a clergyman’s certificate, but is signed by the parties in the presence of witnesses. (1 Buss, on Crimes, 216.) Proof of a register there is proof of the act of the party as much as proof of his signature to a deed would be. But a certificate merely signed by the minister (which was the case with the certificate they were-considering), while it may perhaps avail in civil proceedings, if properly supported, cannot avail in criminal trials where the defendant is entitled to confront the witnesses.” K"o authority is cited by the court in support of this doctrine, nor have we found the doctrine approved in any subsequent decision.

In Smith v. Smith, which was an action for divorce, an attempt was made to establish the former marriage by proof of the cohabitation of the parties, and also by evidence of its solemnization by a justice of the peace, an officer duly authorized, as it was contended, by the laws of the State of Missouri, to celebrate the rites of matrimony. Our supreme court say: “ Ebr are we of opinion that the foreign marriage was sufficiently established by the evidence adduced of its actual solemnization. This consisted in a certified copy from the office of the recorder of Kails county, State of Missouri, of a certificate under the sign manual of a justice of the peace, that he had on a certain day in 1822 solemnized according to law the marriage between the deceased and one Harriet Stone. Admitting that this record is authenticated according to the act of Congress of 1834, and that it should have therefore such faith and credit accorded to it in our courts as by laws and usages of the State of Missouri it has in the courts of that State; yet, having no knowledge of the laws and usages of that State relative to the subject-matter, we cannot determine the faith and credit to which this office copy of the record may be entitled. The form, validity and effect of the record, and of the probate if any be required, must depend on the provisions of some local statute, and this should have been proved before the competency or force of the evidence could be determined. We cannot know, without proof of the law, whether such an instrument is authorized to be recorded, nor the legal effects of the production of a copy of such a record in a court of justice,”' (1 Texas, 621.)

In the case we are considering the law of Michigan was proven. By that law it was required that marriage certificates should be recorded by the county clerk, and that his certified copy of such record “ shall be received in all courts and places as presumptive evidence of the fact of such marriage.”

Was this record such an one as could be exemplified and authenticated under the act of Congress to another State? If a record, we see no reason why not. The statute of the United States reads: “ That from and after the passage of this act, all records and exemplifications of office books which are or may be kept in any public office of any State, not appertaining to a court, shall be proved or admitted in any other court or office in any other State, by the attestation of the keeper of the said records or book, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which said office is or may be kept; or of the Governor, the Secretary of State, etc., . . that said attestation is in due form and by the proper officer, . . . and if said certificate be given by the Governor, the Secretary of State, etc., it .shall be under the great seal of the State in which the said certificate is made. And the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office in the United States as they have in the court or offices of the State from whence the same are or shall be taken.” (2 U. S. Stats, at Large, 298; Brightley’s Digest of Laws of U. S., p. 266; Pase. Dig., art. 3710; Whart. Grim. Evid., §§ 179, 180.)

“Exemplifications of registries of other States must be authenticated (unless there be local legislation or adjudications prescribing less stringent tests) according to the act of Congress. When the act of Congress is substantially complied with they may be received.” (Whart. Grim. Evid. (8th ed.), § 194.) “ An official registry . . . is admissible when kept in conformity with law, and when duly .authenticated, to prove such facts as the law requires to be registered. It follows that whenever a baptismal, marriage or burial registry is kept in accordance with statute, such registry being duly authenticated is admissible to prove the facts which are within the statutory authority.” (Whart. Grim. Evid., § 530; 1 Whart. Evid., 2d ed., .§ 653.)

“ Where a statute, as is the case in several States, requires the return of a certificate of marriage to be made by the officiating minister to the county clerk, for record, the proper mode of proving such fact is by an exemplification of the certificate. But an exemplification of a foreign certificate of marriage will not be received unless it be proved that the record was kept in conformity with law, and that the person officiating was authorized to officiate.” (Whart. Grim. Evid., 2d ed., § 535; 1 Whart. Evid., § 653.)

From these authorities we conclude, when a certificate of marriage is required to be registered, and is properly registered in the county, under the State law, it can be authenticated as an exemplification of a record to another State under the acts of Congress; and that, being a record which can properly be so exemplified, when thus authenticated it is admissible as other documentary evidence would be. “ Documents of a public nature and of public authority are generally admissible in evidence, although their authenticity be not confirmed by the usual and ordinary tests of truth, the obligation of aa oath and the power of cross-examining the parties on. whose authority the truth of the document depends.” (1 Whart. Evid., | 614, and note.)

Mr. Bishop says: “Documentary evidence is receivable, and in proper cases is required, the same in. criminal causes as in civil. It is governed by the same rules. For example: A record may be proved by a certified copy. And the constitutional provision securing to indicted persons the right to be confronted with the witnesses against them does not abrogate this method of proving facts in their nature documentary.” (1 Bish. Crim. Proc., 3d ed., §§ 1132, 1133, 1134)

A certificate of marriage in another State being admissible evidence, the next question is how far is it competent to prove a marriage in fact? Mr. Wharton says, “ the marriage registry proves not only the fact of marriage, but the time of celebration.” (Whart. Crim. Evid., 8th ed., § 532.) Mr. Greenleaf says: “A certificate of marriage, also, by the officiating clergyman or magistrate, though ordinarily not in itself evidence of the fact it recites, yet, if proved to have been carefully kept in the custody of the party whom it affects, and produced from the proper custody, may be read as collateral proof in the nature of a declaration and assertion by the party of the facts stated in the paper. Such certificate also, or a copy of the parish register or other document of the like character, may be read as evidence confirmatory of the proof by reputation and cohabitation.” (1 Greenl. Evid., § 463.)

We can see no good reason why, if admissible — and there is no doubt but that it is—it should not, as stated by Mr. Wharton, prove not only the marriage, but the time of celebration, if the parties be identified as the parties named in the certificate. But, let us take Mr. Greenleaf’s rule and apply it to the facts of this case. Under his rule it is confirmatory of reputation and cohabitation. In this case a witness testified on the trial that she had lived in Manistee, Michigan ; knew defendant and Ms first wife, nee Ann Maria Cowen — was not present at their marriage, but after the marriage was introduced by Ann Maria Cowen that was, to defendant as her husband. That, according to general reputation in Manistee, Michigan, defendant and Ann Maria Cowen were man and wife lawfully married. That, when she first saw defendant at Beaumont, she asked about his wife Ann Maria, and he said she was still in Michigan, and he intended returning to her. If these facts needed confirmation of the fact of the Michigan marriage, then Mr. Greenleaf says a certificate of that marriage was admissible as confirmatory evidence.

But it is said that reputation of the fact of the first marriage was inadmissible under our statute, which says that “ proof of marriage by mere reputation shall not be sufficient.” (Penal Code, art. 328.) The statute does not say that reputation is not admissible as evidence, to be taken in connection with other proofs, to establish the fact, but that in and of itself alone, and without other evidence, it is insufficient to establish the fact. Reputation is proof in connection with other facts. (Dumas v. The State, 14 Texas Ct. App., 464.)

Other errors are assigned and ably discussed in the brief of counsel for appellant, but all those of a material character have been necessarily though incidentally passed upon in the discussion of the questions we have decided in the foregoing pages of this opinion. We believe appellant has been convicted upon competent and legal evidence, and that the evidence is sufficient. We have found no error in the record for which the judgment should be reversed, and it is therefore in all things affirmed.

Affirmed.

[Opinion delivered November 5, 1884.]