Commonwealth v. Morris

By the Court.

This was an indictment for adultery. After conviction several exceptions were taken to the directions of the judge who tried the cause.

1. One arises in this way. The prosecution offered evidence of familiarities of the defendant with Abby Dow, (with whom the adultery was alleged to have been committed), at or about the time of the offence charged. On cross examination, the witness left it doubtful as to the time, so that the acts referred to might have occurred a year before. It is objected, that this evidence ought not to have been received. It certainly could not have been rejected, as incompetent, when it was offered, for it was offered to prove acts about the time ; and the nearness of time is only a circumstance affecting its effect, and not its competency. If the time be brought into doubt by the cross examination, it was for the jury to consider.

2. It was objected, upon the evidence, that the defendant ought to have been acquitted. This is not a motion to set aside a verdict, as against evidence, nor is the evidence reported with that view ; such a question cannot be raised on a bill of exceptions. The bill states, that Abby Dow, called as a witness by the defendant, admitted the truth of the charges proved against the defendant, but denied the criminal intercourse. Her testimony was not directly impeached, but her credit was left to the jury, with directions to acquit the defendant, if they believed her. This instruction was certainly favorable to the defendant, and he cannot object. It is difficult to perceive how her admissions of familiarities of the defendant with her entitled her to any increased credit, or how the jury could have acquitted him upon her testimony, if they did not believe her.

3. One other exception is, that a certificate, purporting to be a marriage certificate made by a clergyman of another state, was offered by the prosecution, to prove the defendant’s marriage, and was objected to, but admitted. We are of opinion, that this paper, wholly unauthenticated, was not competent evidence, and ought not to have been admitted. And it received no additional weight by coming from the custody of the woman alleged to be his wife. She could not be a witness against her husband, and her production of the paper, not verified or proved, did not malee it evidence against him. It was said, that it was used only as a circumstance, in connection with other proof. If the other proof were sufficient without it, the certificate was unnecessary and immaterial ; if not, then it had weight as judicial proof, when it should have had none, and, in the minds of the jury, might have turned the scale.

Verdict set aside, and case remanded to the municipal court, for a new trial.