People v. Lambert

5 Mich. 349, 1858 Mich. LEXIS 50

• Court: Michigan Supreme Court
• Decided: July 13, 1858
• Status: Published

Opinion

Campbell J.:

This case comes up from the Court below, upon questions arising on the trial, and objections to the charge. The defendant was indicted for bigamy. The sqgond marriage was proven to have taken place in this State, and no questions arise upon it. The first marriage was alleged to have taken place in New Jersey. A witness named Treadwell, who testified that he had been a policeman and constable in New Jersey, and did not swear to any general knowledge of the laws of that State, but said he had, on account of a difficulty with his own wife, looked into those laws, was allowed to testify what the written laws of New Jersey were in regard to marriage; and an exception was taken to the reception of his testimony.

This brings up the inquiry how the statutes of sister States are to be proved? Our statutes (Comp. L. §4315) have provided for their proof by the reception of printed copies; and the Act of Congress of 1790 has authorized their exemplification under the great seal of a State. That in one or the other of these methods such laws are easily accessible, no one doubts. But it is claimed there is no legal objection to proving them by parol. The general rule is well settled, that parol evidence of the contents of a written document can not be given. The exceptions are where the original is lost or destroyed. The fact that a paper or entry belongs in a public office, and can not be removed, has never been allowed to open the door to parol evidence. The reason of the law requires the best evidence to be produced which the nature of the case will admit of. And an exemplification in due form is the best legal method of proving the contents of a public record. Where it is provided, as under our laws, that such proof may be made by a printed copy, in addition to the mode pointed out by the Act of Congress, no reason which has been allowed to apply to proof of private documents by parol can be said to exist. And if parol evidence is admissible at all, it must be on some ground peculiar to the subject of foreign laws.

This subject has undergone some discussion, and the American authorities are quite uniform as to the mode of proof. In Church vs. Hubbart, 2 Cranch, 187, the question was examined, and it was held the best proof must be offered which the nature of the case would admit of; which must be a copy, either exemplified, or otherwise verified, by oath, or by some method regarded in law as of equal validity. Nothing but the impossibility of obtaining a copy — a case, as the Court remarks, not to be presumed among civilized nations — can excuse the non-production of such a copy. This decision, made in 1804, has been adhered to in many cases. Among them are: Consequa vs. Willings, Pet. C. C. 225; Robinson vs. Clifford, 2 Wash. C. C. 441. It is also recognized as law in 1 Greenl. Ev. §§487-8; Story Confl. L. §§ 639, 640, 641. If our own government has in any case promulgated a foreign law or ordinance as authentic, that promulgation is sufficient proof.— Talbot vs. Seeman, 1 Cranch, 38. The unwritten law must, from the nature of things, be proved by parol evidence. In this State, our statutes permit that to be proved by parol, or by the books of reports.— Comp. L. § 4316. •

The case of Baron de Bode, 8 Q. B. 208, is a recent English case, in which a French edict was allowed to be proved by the testimony of an advocate. It is not to be denied that the reasoning of the judges in that case has much force. The admission of the evidence was placed on the ground of its being a question of seiénce, and being provable by experts like other scientific facts. Lord Denman observes: “Properly speaking, the nature of such evidence is, not to set forth the contents of the written law, but its effect, and the state of law resulting from it. The mere contents, indeed, might often mislead persons not familiar with the particular system of law: the witness is called upon to state what law does result from the instrument. I do not think that the case of treaties is applicable: there, no class of persons are so peculiarly conversant with the subject-matter, as to invest it with the character of a science.” Coleridge J. adverts to the difficulty of understanding the written laws of foreign countries possessing a different jurisprudence, and Williams J. suggests the inability to obtain copies from the public authorities of those countries. Patterson J. dissenting, gives it as his opinion, that the written document should be proved by an exact copy, and that, if difficulties arise in expounding it, the true method is to call in the testimony of experts to make the exposition, but not to prove the contents of the law by them, nor to be satisfied with a mere statement of its conclusions, without knowing its language.

The opinion of Patterson J. is, we think, founded on better reason than the decision of his associates. There are certainly very many statutes too clear to need, explanation; and it is far safer to examine legal witnesses upon the exposition of statutes, than to trust to their unaided memory for proof of all statutes in force. In this country, at least, such a practice would be very unsafe; and there are reasons growing out of our peculiar federated system which would render it highly inexpedient to adopt any such course in regard to the laws of our sister States. Within a century, most of them were under the dominion of the same general common law system, and their statutes are to be interpreted by similar rules. Ail of them are represented in Congress, and the laws of Congress are supposed to be susceptible of interpretation by any tribunal in the land. In our territorial condition we were bound by laws selected from all the old States, and our courts were expected to pass upon them. We have ready access to the reported decisions of courts, which are the only authorized exponents of their local statutes. Cases must certainly be rare in which the courts of one State can not comprehend the statutes of another. The chief difficulty would arise between States where one is possessed of a common law and the other of a civil law system. But in all cases it is safer to have the written law as a guide, whether it needs expounding or not.

In this case, the witness offered would not have been competent under eith% rule. In regard to the law of marriage, his means of knowing the law were those of any other citizen, and no more. Some English cases have gone very far in receiving the testimony of foreign residents concerning their local law, but it is now very well settled that the witness must be an expert. In most cases, he must be a lawyer: in some instances, a public officer or an ecclesiastic has been received to prove the law in his special department. The Sussex Peerage Case, in the House of Lords (11 Clark & Pin. 85), overruled all the cases which permitted other witnesses than experts to be sworn on this subject. Since then the courts have followed that ruling. In Vander Donckt vs. Thellusson, 8 M. G. & S. 812, the Court say: “We must take it to be the law of England, that, in order to prove the law of a foreign country, there must be some special ground for believing that the person who is offered is more than ordinarily capable of speaking upon the subject”; and this is explained by saying further: “All persons, I think, who practice a business or profession which requires them to possess a certain knowledge of the matter in hand, are experts, so far as expertness is required.” And in Regina vs. Povey, 14 Eng. L. & Eq. 549, which was a bigamy ease, in which a woman had been allowed to testify to a-marriage in fact by a minister in Scotland, and to the legality of it, the conviction was quashed by the Court of Criminal Appeal, who held the testimony insufficient, and said: “ There may be certain cases, perhaps, in which it may not be necessary to have a lawyer to - give evidence; but the Court is clearly of opinion that some witnesses conversant with the Scottish law of marriage should have been called on the part of the Crown.” And in Bristow vs. Segueville, 5 Exch. 275, a witness was rejected as incompetent who had studied the foreign law at a university, but had not practiced it. ■ ,

The results which would flow from regarding persons with slight qualifications as experts, would be disastrous, and would often subject the administration of the law to just reproach. We think that the statutes of New Jersey should have been proved by copies; and that if they needed explanation, the witness Treadwell was not in a position which qualified him to expound them.

It is claimed by the prosecution that in the absence of proof to the contrary, the law of Michigan will be presumed to be the law of New Jersey, The cases of Rue High, Appellant, 2 Doug. Mich. 515; of Crane vs. Hardy, 1 Mich. 56; and Jones vs. Palmer, 1 Doug. Mich. 879 ; are decisions of this Court which are supposed to maintain this principle. It is unnecessary here-to decide how far those cases may be held to go "beyond the application of tbe law there laid down to the facts in each case. In each of those cases the party invoking the aid of the Court relied .upon an instrument valid under our laws, and it was held, in each instance, that the lex fori would be presumed to apply until it was shown that the foreign law was different. The presumption was one.of a kind often made ut res magis valeal quam pereat. Here, there was evidence that the law of New Jersey was in a statutory form. And, inasmuch as the foreign law is a fact which may be proved by one side or the other, and is a fact material to the issue in determining the legality of the alleged first marriage, the rule comes in and ap'plies, That no presumption can be made against the innocence of the party charged with a crime. It is the duty of the Commonwealth to prove every fact essential to make out the guilt of the accused, and the facts proved must be inconsistent with the theory of his innocence, or with any theory except that of his guilt. To prove the legality of the alleged first marriage, the law of New Jersey must be shown; and the defendant can not be called upon to give any proof on the subject. —1 Greenl. Ev. §§34, 35; 3 Ibid. §29; Rex vs. Twyning, 2 B. & Ald. 386. Cases of prosecution for polygamy are not unfrequént, where the first mai’riage was charged to have been celebrated abroad, and the Courts have always required proof, not only of marriage in fact, but of a valid marriage according to the foreign law. — 2 Greenl. Ev. §461; Ros. Cr. Ev. 310, 320.

The certificate of marriage, even if the law of New 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 Russ. 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 certificate1 merely signed by the minister, while it may perhaps avail in civil proceedings, if properly supported, can not avail in criminal trials, where the defendant is entitled to confront the witnesses. And this certificate is entitled to no credit for other reasons. It bears no date, and does not either declare where the marriage tóqk place, or show where the minister resided. It does not show, therefore, that he acted within his jurisdiction, or that the marriage took place as charged in the indictment, in New Jersey. And it does not appear to have been made at or near the time of the marriage. On the contrary, its record being made after the arrest of the prisoner, there is room for presumption the other way. Such an instrument is not entitled to the slightest consideration, and is inadmissible for any purpose. — 1 Greenl. Ev. §485; Mundy vs. Munroe, 1 Mich. 68.

The only other question of importance in this case is, Whether a prisoner may be convicted of polygamy upon his own confession, merely, of the first marriage.

It is declared by Bussell and Roscoe to be a matter of doubt.- — -1 Russ. on Crimes, 217, 218; Roscoe Cr. Mo. 312. Truman's Case, there referred to, Avas not a case of mere confession, but there was also documentary evidence. In Regina vs. Simmonsto, 1 C. & K. 164, where the admission Avas of a marriage very much like the first marriage here alleged, that is, of a marriage in New York by a Presbyterian minister, it was doubted whether the admission was enough to prove the marriage to have been a valid one under the Iuavs of New York. The judge allowed the case to go to the jury, advising them that the laAv of New York was material; and a verdict was found of not guilty. The subsequent cases decided, in effect, that a foreign laAv could not be proved by any such testimony. And in Regina vs. Flaherty, 2 C. & K. 781, it was held expressly that there must be evidence of the first marriage beyond the mere admission of the prisoner. The English laAv must, we think, be considered as against allowing a conviction for this offense on mere admissions. There is a consideration hinted at in some of the cases which has much force. An admission of a valid marriage, is an admission of law as well as of fact, and such admissions are never regarded as of much weight; and certainly never ought to satisfy a Court of what the law is, where that becomes material.— 1 Greenl. Ev. §96. Mr. Greenleaf expresses the opinion that the corpus delicti should be proved by other evidence before a conviction should be permitted. It was so held in a case of bigamy by the Supreme Court of New York, in People vs. Humphrey, V Johns. 314. And this law has since been recognized in several cases in that State. — See Gahagan vs. The People, 1 Park. Cr. R. 378. There are undoubtedly some authorities to the contrary; but the weight of reason is, we think, in favor of requiring further evidence.

Some confusion has been created by not distinguishing between the various kinds of confessions. A deliberate confession in open court is treated as sufficient evidence, always, as far as it goes, if made on the trial of the cause, and perhaps even on the preliminary hearing, provided it is made freely. It is regarded as proof on the same principle with a plea of guilty, because the accused can not be sup|>osed to act without consideration. But confessions made extra-judicially are often misunderstood, and easily perverted. It wiE be found that very few, if any, convictions have been allowed without some cumulative evidence. — See People vs. Hennessy, 15 Wend. 147, for some remarks on this subject.

There would be a peculiar difficulty in resting upon confessions and cohabitation alone, arising from the act that persons forming illicit connections are very rarely bold enough to live openly in the community in such a relation, and avow its existence. To confess it, would expel them from all decent society; and very few are so infatuated as to forego the advantages of social intercourse and respectability, if they can obtain them by the assumption of virtue. For civil rights, the law holds them to their professions, but in criminal cases the offense must actually exist.

No doubt in these, as in all other criminal prosecutions, circumstantial evidence of a conclusive nature may often avail, where direct testimony is inaccessible. But it must be testimony not reasonably capable of any other interpretation. It must be testimony from which nothing but guilt can, in the natural order of things, be deduced. — Commonwealth vs. Webster, 5 Cush. 295. The case of Rex vs. Inhabitants of Brampton, 10 East, 282, is an instance where the evidence would* be generally considered satisfactory. There it was proved that the parties, with the expressed desire of marriage, went to a chapel in the island of St. Domingo, where a service, purporting to be a marriage service, was publicly performed, by a person in the dress of a priest, and that they subsequently lived together, until the death of one of them. The publicity of the matter, the place of celebration, the previous intent and subsequent acts of the parties, were allowed, and properly held to be proof*of a valid marriage,' according to the law of St. Domingo, without further evidence of that law. The various opinions in the case all concurred in sustaining the marriage, and contain much good sense. Other cases may be supposed, where the testimony might vary from these circumstances and'be equally conclusive, although falling short in various particulars. Circumstantial evidence assumes many forms, and can not always be limited or defined in advance. We do not mean to decide whether or not evidence by an eye-witness, of an actual marriage, may not, in some cases, be dispensed with, where there is other circumstantial evidence going to establish it conclusively. But it would be very unsafe to permit a conviction upon any proof which is susceptible of two interpretations, and upon which any theory can be reasonably based of innocence of the offense charged.

We think the first marriage and its legality must be affirmatively proved by evidence beyond the mere confessions and conduct of the prisoner, as shown in the bill of exceptions.

The other points in the case are substantially covered by the remarks already made. For the reasons mentioned, we think the defendant was improperly convicted.

Let it be certified to tbe Circuit Court for tbe county of Wayne, as the opinion of this Court, that the verdict in this cause should be set aside, and a new trial gx-anted.

The other Justices concurred.

Certified accordingly.