Commonwealth v. Belgard , 71 Mass. 95 ( 1855 )

Murrick, J.

The circumstance chiefly relied upon by the government at the trial to establish the fact alleged in the indictment, that the defendant was a married man at the time of the commission of the act charged against him, was his long cohabitation with the mother of the witness Julia Belgard. This, under the provision of our statute, was competent evidence for the consideration of the jury; but it was by no means conclusive that the parties had ever been lawfully married; for their cohabitation may have been unlawful. Sts. 1840, c. 84; 1841, c. 20. Rev. Sts. c. 130, § 4. Whether it was the one or the other, was the material fact involved in the issue between the parties, and was to be determined by the jury in view of all the facts and circumstances proved upon the trial. As the presumption of law is always in favor of the innocence of a party until his guilt has been legally established, the inference to be deduced from the fact that a man and woman have openly and professedly dwelt together as husband and wife, and held themselves out to the community as bearing that relation to each other, when no counteracting circumstances or explanations are adduced in evidence, is, undoubtedly, that they have been duly united in the bonds of lawful marriage. But as such an inference is not necessarily to be drawn under all possible circumstances, it must, at his election, be the right of a defendant, in repelling a criminal accusation, to produce evidence of facts and circumstances tending to show that, in his particular case, no such inference could justly or truly be deduced from cohabiuation, because he had never in fact been lawfully married.

We think therefore that, in this case, the presiding judge erred in not permitting the defendant to ask the witness on cross-examination what he said to her mother, his supposed wife, when they first met in Montreal. We do not know what the reply would have been ; but the object of the interrogation obviously was to educe an explanation of the origin of the intercourse between the parties, and to show that their subsequent cohabitation was not the result of a marriage, but of an arrangement for an unlawful connection with each other. The circumstances related by the witness concerning her mother were very peculiar. She did not know, but supposed or had understood, that her mother had been divorced from her former husband ; nor did she know whether he was dead or still living. And she was equally ignorant of the fact of any marriage having ever taken place between her mother and the defendant. She knew that they dwelt together as husband and wife. Thus far she had given evidence on the part of the government. She apparently knew, also, something of the terms proposed by the defendant, or agreed to by the parties, concerning their future cohabitation. As this would tend to explain the fact proved in support of the prosecution, and to show that the inference of marriage deduced from it by the government was erroneous, the witness should have been required to answer the question proposed to her by the defendant. It may be that it would have been effectual and decisive in his defence. But the court did not permit his interrogatory to be answered. As he was deprived of his right to lay before the jury what may have been a controlling explanation of the material fact from which his marriage with Mrs. Portri was to be inferred by them, the verdict rendered against him cannot be sustained. It is therefore set aside, and a

New trial ordered.