State v. Newman ( 1923 )

ME. COMMISSIONEE FELT

prepared the opinion for the court.

The defendant was convicted of the crime of rape, alleged to have been committed upon the person of one Agnes Flannigan, a female child under the age of eighteen years, and not the wife of the defendant. He was sentenced to a term of imprisonment in the state prison, and appealed from the judgment of conviction and the order overruling his motion for a new trial.

Nineteen specifications of error are urged as ground for reversal. One group relates to alleged error on the part of the court in not requiring the county attorney to make a more definite election as to which of several acts he relied upon for conviction.

The undisputed evidence in the case shows several acts of sexual intercourse, all occurring within a period of two weeks, or less, prior to the arrest of the defendant. The complaining witness and the defendant himself fix the date of the first act as the twenty-seventh day of November, 1921. The others occurring at varying intervals upon dates of which neither party could be certain, the last a few days prior to the arrest. The information charges commission of the act on the 11th of December,- and the county attorney, at the suggestion of the court, was required to elect the act nearest to that date. Since all of the acts were committed within a brief period, and under exactly the same circumstances, the defendant was not prejudiced in any degree by not requiring the county attorney to make a more definite election. (State v. Harris, 51 Mont. 496, 154 Pac. 198.)

The principal contention, however, and the only one that requires serious consideration, raises the question as to whether or not the complaining witness, Agnes Flannigan, was the wife of the defendant.

Before any testimony was given in the case, upon Agnes Flannigan being called and sworn, the defendant interposed an objection to her being permitted to testify in the case on the ground that she was the wife of the defendant. The court ruled: “We will presume that she is not. The objection will be overruled.” The court’s preliminary remark was highly objectionable, but the ruling was correct. The defendant could not place a seal upon the lips of the witness by merely asserting ineompetency by reason of the alleged relationship. There is no presumption that a witness is incompetent; and upon this preliminary matter the party insisting on the disability to testify must prove that the relationship of husband and wife exists. (Jones on Evidence, sec. 744; Green-leaf on Evidence, sec. 339; Wharton, Criminal Evidence, 10th ed., sec. 390. “The orthodox division of function between judge and jury allots, without question, to the judge the determination of all matters of fact on which the admissibility of evidence depends; and therefore of the facts of a witness’ capacity to testify.” (Secs. 10698, 10699, Rev. Codes 1921; Wigmore on Evidence, sec. 487.)

“There are two modes by which the competency of a witness may be determined; and the party who objects to a witness may, of right, adopt either. He may examine the witness upon his voir dire, or he may prove the alleged incompetency by evidence aliunde.” (People v. Anderson, 26 Cal. 130.) At the conclusion of the voir dire examination, or from the evidence aliunde, the court determines whether or not the witness is competent. (State v. Hancock, 28 Nev. 300, 6 Ann. Cas. 1020, 82 Pac. 95; Flanigan v. State, 25 Ark. 92, 95; Rickerstricker v. State, 31 Ark. 207, 209.) The defendant did not avail himself of either of the means open to him for testing the competency of the witness. He did not ask to examine the witness on voir dire, nor ask the court to do so. Neither did he request the right to produce evidence aliunde to prove the alleged relationship. It is not error for a trial court to permit a witness to testify, without voir dire examination, over an objection as to her competency, if it appears from all of the evidence given at the trial that she was competent. (State v. Simes, 12 Idaho, 310, 9 Ann. Cas. 1216, 85 Pac. 914.)

Upon cross-examination counsel for defendant asked the witness Agnes Flannigan: “ Q. Are you the wife of the defendant? A. Yes, sir.” Motion was then made to have all of her testimony stricken from the record and witness excused on the ground that there was then evidence to show that she was the wife of the defendant, and incompetent to testify. The motion was overruled. If error was committed by this ruling, it was cured by the evidence introduced later.

At the conclusion of the state’s testimony counsel for the defendant moved that the case be dismissed and the jury be instructed to bring in a verdict of not guilty on the ground that the state had not proved that the complaining witness was not the wife of the defendant. Direct evidence of this fact is not necessary to sustain a conviction. It may be proven by inference. (People v. Bonzani, 24 Cal. App. 549, 141 Pac. 1062; People v. Allison, 44 Cal. App. 118, 185 Pac. 992.) The state introduced testimony to prove that at the time of the defendant’s arrest he was living with complaining witness. The girl then, in the defendant’s presence, stated that her name was Agnes Flannigan. At first they denied having had sexual intercourse, and made no pretense of being married at that time. At the time of defendant’s arrest, and several times later, he expressed a willingness to marry the girl, if the officers would give their permission. There was sufficient evidence from which the jury could infer that the complaining witness was not the wife of defendant, and the court committed no error in overruling the motion for a directed verdict.

The defendant was not content to stand on his motion, or to submit the case to the jury and rely upon the weakness of state’s ease for an acquittal. He took the stand and testified in his own behalf. He admitted having at least four acts of intercourse with the girl within two weeks prior to his arrest. The defense is that an unsolemnized, or “common-law,” marriage was consummated immediately prior to the first act of intercourse. He testified quite particularly in regard to the manner of consummating the alleged marriage. From his own testimony in that regard, there is abundant evidence to support the verdict. “Where the testimony of one of the parties to an alleged contract of marriage shows that there was no contract by words in praesenti, all other evidence on the subject is of no importance.” (Tholey’s Appeal, 93 Pa. 36.)

Our statute defining marriage (sec. 5695, Rev. Codes 1921) reads as follows: “Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by mutual and public assumption of the marital relation.” The necessary consent need not be expressed in any particular form. (Sec. 5697, Rev. Codes 1921.) In a proper case it may even be implied from the conduct of the parties. (Univ. of Mich. v. McGuckin, 64 Neb. 300, 57 L. R. A. 917, 89 N. W. 917.) But the consent, whether in express words, or implied from conduct, must always be given with such an intent on the part of each of the parties that marriage cannot be said to steal upon them unawares. One cannot become married unwittingly or accidentally. The consent' required by our statute, as well as the statutes of every state, and by the common law, must be seriously given with the deliberate intention that marriage result presently therefrom. The words manifesting the. consent may be spoken in the face of the church, or immediately preceding an act of sexual intercourse, as claimed in this case. But they must always be spoken by those who know and intend that matrimony in full form shall be the result. Marriage cannot be created piecemeal. It comes instantly into being, or it does not come at all. If anything remains to be done before the relationship is completed in contemplation of the parties themselves, there is no marriage.

“In order to constitute a marriage per verba de praesenti, the parties must agree to become husband and wife presently. The consent which is the foundation and essence of the contract must be mutual and given at the same time, and it must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, or that it be publicly solemnized. That is to say, it must contemplate a present assumption of the marriage status, in distinction from a mere future union. (Lord Brougham in Queen v. Millis, 10 Cl. & F. 534, 708, 730; Clark v. Field, 13 Vt. 460.)” (Beneficial Assn. v. Carpenter, 17 R. I. 720, 24 Atl. 578.)

In this connection we will examine the testimony of the defendant: “When she first got in bed with me that night, the only objection I made was that she couldn’t sleep with me unless she became my wife. That was the understanding; yes, sir. Asked if that is what I told her, I will say that I told her that no woman would ever sleep with me that way unless she was my wife. She said that she would never leave the place, and I told her to write a letter to her mother for the consent to a church marriage. When she said that she would never leave the place, I took it for granted that she meant that way, and I told her that she would have to be my wife. * * * Asked if I noticed any difference in Agnes Flannigan Newman’s actions on the morning after this agreement, I will say why, only that she was more tickled than she was before, to know that we were going to be married soon.”

In the absence of such statutory provision as we have, requiring public assumption of the marital relation, keeping it secret does not invalidate the marriage. (Dalrymple v. Dalrymple, 2 Hegg. Con. 54, 3 A. R. C. 1; Hulett v. Carey, 66 Minn. 327, 61 Am. St. Rep. 419, 34 L. R. A. 384, 69 N. W. 31; 3 A. R. C. 329.) Our attention has not been called to the statute of any other state similar to ours in that respect. The California statute, in effect at the time that we adopted the Code, in lieu of a solemnization, required a mutual assumption of marital rights, obligations, and duties. This assumption was not required to be publie. An agreement to keep it secret did not invalidate the marriage if every other necessary element were present. (Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 131; 3 A. R. C. 195.) A few other states have a statute similar to that of California, but in the vast majority of the states a common-law marriage is recognized; but not so in Montana. “In this state there is no common law in any ease where the law is declared by the Code or the statute.” (Sec. 10703, Rev. Codes, 1921.) “The Codes establish the law of this state respecting the subjects to which they relate.” (Sec. 4, Id.) Our Codes have modified the common law with respect to marriage by requiring, in the absence of solemnization, a mutual and public assumption of the marital relation.

We will examine the testimony of the defendant himself to see if the element of publicity required by our statute is present. “Asked if I ever told any one that I was married to this girl, Agnes, I will say that I don’t think I ever told that I was married—only that I had a cook and a housekeeper. As to whether or not I ever told a single person that she and I had been married, I will say that I hadn’t told nothing. That was between the two people, her and I. I never told you anything about it, nor any one else, not until I told it to you, just now. To-day is the first time that I can remember that I ever told anyone thát she and I were married; that’s the first day I can remember, is to-day. # * * Asked why I didn’t tell people of my marriage—that is,-of this agreement— previous to the time this came out, and previous to the time that I did announce it, well, we kept it a blank. We thought we could get a solemnized marriage without being detected. ’ ’

Why the defendant did not inform anyone of his marriage prior to his arrest is answered by another quotation from his testimony as follows: “I first found out that there was such a thing as a common-law marriage by the authority of my attorney; that is right. That was somewhere about the 15th of December, was it, after I was arrested? Asked if that is the first time I actually knew of it, I will say that I don’t know as I actually knew it; no.” Plow could he publicly assume a relationship which he, himself, did not know was in existence?

There are many text-books on the law with reference to marriage, and many eases construing and applying the law. In some a marriage has been held to exist and in others it has not, each case depending upon the particular facts presented. None, however, hold contrary to what is herein expressed. The defendant in his brief quotes from Hadley v. Rash, 21 Mont. 170, 69 Am. St. Rep. 649, 53 Pac. 312, to the effect that “Presumption in favor of matrimony is one of the strongest ¡mown to the law. The law presumes morality, and not immorality, marriage, and not concubinage; legitimacy, and not bastardy.”

In re Huston’s Estate, 48 Mont. 524, 139 Pac. 458, is also cited in support of this proposition. There is no doubt that the law does indulge in such a presumption. However, it has always been held that this is a disputable presumption. (Van Tuyl v. Van Tuyl, 57 Barb. (N. T.) 235; Quackenbush v. Swortfiguer, 136 Cal. 149, 68 Pac. 590; Pegg v. Pegg, 138 Iowa, 572, 115 N. W. 1027; Letters v. Cady, 10 Cal. 533; Cross v. Cross, 55 Mich. 280, 21 N. W. 309; In re Terry’s Estate, 58 Minn. 268, 59 N. W. 1013; Clark v. Field, 13 Vt. 460; Morrill v. Palmer, 68 Vt. 1, 33 L. R. A. 411, 33 Atl. 829, 831; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164.)

In In re Terry’s Estate, supra, the court held that the party asserting the marriage relationship had rebutted the presump-; tion of marriage by her own testimony. One of the controlling factors in that case was that she herself did not know that the claim of marriage could be plausibly asserted, until so advised-by her counsel. The presumption was likewise overcome in the same manner in Pegg v. Pegg. supra; likewise in Appeal of Reading Fire Ins. & Trust Co., 113 Pa. 204, 57 Am. Rep. 448, 6 Atl. 60. The presumption in favor of marriage is only indulged in where a court is not in possession of all the facts upon which the alleged relationship depends. That was the case in Hadley v. Rash, supra; also in In re Huston, supra, and Hutchins v. Kimmell, supra. In the present case the court had the testimony of both contracting parties, and the testimony of the defendant himself upon the matter shows that the words spoken at the time of the alleged marriage did not contemplate a present marriage relationship, and that he did not himself understand that a marriage was being consummated at the time. “All other evidence on the subject is of no importance.” (Tholey’s Appeal, supra.)

The defendant and the complaining witness, on the third day of February, 1922, executed a declaration of marriage, attempting to embody the requirements of sections 5724 and 5725 of the Revised Codes of 1921, which declaration was filed on. the sixth day of February at 5:45 o ’clock P. M., the trial beginning on the seventh day of February. It is not suggested by counsel for the defendant, who acted as notary in taking the acknowledgment of the parties to the declaration, that this constitutes a marriage in itself. It does not contain a present promise to enter into the marriage relation, but refers back to the alleged contract of marriage on the 27th of November, 1921. In Toone v. Huberty, 104 Cal. at 260, 37 Pac. 944, the supreme court of California held that a declaration conforming in all respects to the requirements of section 75 of the Civil Code, which is identical with section 5724 of our Code, did not constitute a marriage. Independent of the declaration, there must be all of the elements necessary before a marriage can result. The declaration was provided by statute for the purpose of authenticating a marriage. It takes the place, in an unsolemnized marriage, of the certificate filed by the officiating magistrate or clergyman in the case of a solemnized marriage.

From the foregoing it would appear that the court and jury were warranted in reaching the conclusion that there was no marriage between the defendant and the complaining witness, either at the time of the commission of the alleged offense or at the time of the trial, and there was no error in that behalf.

The only evidence offered by the defendant which was excluded by the court, and upon which ruling error is urged, is with reference to the witness Lee Parmelee who was asked, “Now what did you understand from that,” and “Did you believe at that time that they were living there as husband and wife?” After both questions the court sustained an objection upon the ground that the same were incompetent, irrelevant and immaterial, and in. this ruling there was no error.

In his specification of error No. 14 the defendant raises an objection to the áction of the trial court in modifying* his offered instruction No. 14. This court is prohibited by statute from reversing a case for error in instructions unless the same is specifically pointed out and excepted to at the settlement of the instructions^. (Sec. 9349, subd. 5, Rev. Codes 1921; State v. Thomas, 46 Mont. 468, 128 Pac. 588.) No useful purpose can be served by commenting on the action of the court in that regard. The instructions of the court, as a whole, fairly state the law in regard to unsolemnized marriage, and were sufficiently favorable to defendant. There was no error in refusing any of the defendant’s offered instructions.

The evidence was sufficient to sustain the verdict of guilty. Since there was nothing else before the court upon which a new trial might be granted, the court did not err in denying the same.

We recommend that the judgment of conviction and the order overruling the motion for a new trial be affirmed.

Per Curiam :

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Affirmed.