Opinion
No. 33765.
October 9, 1939. Suggestion of Error Overruled October 23, 1939.
1. MARRIAGE.
Living and cohabiting together as man and wife and openly proclaiming that relationship constituted a valid common law marriage under Mississippi statutes (Code 1930, secs. 2363-2367).
2. BIGAMY.
In prosecution for bigamy, proof of a common law marriage in Mississippi prior to regular ceremonial marriage to another woman was permissible (Code 1930, secs. 2363-2367).
3. MARRIAGE.
A common law marriage in Mississippi is as valid and binding as the statutory ceremonial marriage (Code 1930, secs. 2363-2367).
4. BIGAMY.
In prosecution for bigamy, evidence establishing a common law marriage between accused and a distant cousin prior to a ceremonial marriage with another woman sustained conviction though state failed in its attempt to prove a regular ceremonial marriage between accused and cousin (Code 1930, secs. 2363-2367).
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Fulton Quinn, of Jackson, for appellant.
The so-called certified copy of the certificate of marriage between defendant and Mary D'Antonio was inadmissible, as it did not comply with Section 1584 of the Code of 1930 and the Act of Congress governing the admissibility of documents and certified copies from another state.
Title 28, U.S.C.A., Sec. 688.
Notwithstanding the fact that, if the so-called marriage certificate had been properly certified to, in compliance with Sec. 1584, Code of 1930, and the Act of Congress, the same would have been inadmissible. To admit this certificate would have been an infringement upon the constitutional guaranty given the defendant by Sec. 26 of the Constitution of 1890.
We most respectfully insist that the admitting of this certificate was an infringement upon the defendant's rights, and that Sec. 1584, Code of 1930, is inapplicable to the introduction of documents and copies, when to do so in a criminal case would be an infringement upon the defendant's constitutional rights.
14 Am. Jur., Secs. 176, 177; People v. Lambert, 72 Am. Dec. 49; People v. Goodrobe, 132 Mich. 542; Blackwell v. State, 146 So. 628.
The right of the accused to be confronted by his accusers before the tribunal which pronounces upon the facts has already been deemed one of the most valuable safeguards of the citizen. It protects him against the peril of conviction by means of ex parte testimony or affidavits given in his absence, or when he has not the right to cross-examination. The main and essential one of confrontation is to secure the opportunity of cross-examination. The opponent demands confrontation not for the idle purpose of gazing upon the witness or of being gazed upon by him, but for the purpose of cross-examination which cannot be had except by the direct and personal putting of questions and obtaining the immediate answer. That this is the true and essential significance of confrontation is demonstrated by counsel and judges from beginning of the hearsay rule to the present day.
14 Am. Jur., Secs. 176, 177; People v. Lambert, 72 Am. Dec. 49; People v. Goodrobe, 132 Mich. 542; Blackwell v. State, 146 So. 628.
The court below erred in not excluding the testimony of witnesses, Camille, Phillip, and John J. D'Antonio, and J.J. Ring.
We most respectfully insist that the court erred in not excluding the testimony of the above witnesses, as the evidence, without the aid of the so-called certificate of marriage, was insufficient to prove a valid marriage under the law of Louisiana.
We respectfully argue that the state must prove a marriage valid under the law wherein it is said to have been contracted.
7 Am. Jur., Secs. 39, 744; Graves v. State, 99 So. 364; Henderson v. Cargill, 31 Miss. 367; McQueen v. State, 109 So. 799.
The court erred in not granting the defendant's peremptory instruction.
The court erred in granting the state's instruction.
Russell Wright, Assistant Attorney-General, for the state.
Appellant contends that the testimony of the witnesses, Camille D'Antonio and Phillip D'Antonio, should have been excluded because there was no showing that the wedding which they attended was valid according to the laws of Louisiana.
Here was a public wedding, at the courthouse in Algiers, Louisiana, performed by "a judge or justice of the peace," in the presence of witnesses, two of whom signed as witnesses some sort of paper evidencing the fact. These witnesses were the brother and sister of the bride. Without any proof of any affirmative claim on the part of the person performing the ceremony, it seems sufficient proof of the ceremonial marriage under the case of Taylor v. State, 52 Miss. 84, and McQueen v. State, 143 Miss. 287, 109 So. 799.
The failure to have the certificate properly certified was not important. The copy of the marriage record was not introduced as a certified copy. It was introduced by a witness who on oath testified that he had compared it with the original record, and it was a true copy. There was no objection interposed on the ground that it was a copy, and therefore not the best evidence, and therefore the trial court may not be put in error on such ground.
The copy was further admissible because of the fact that the two witnesses to the ceremony, whose names were shown to have been signed thereon, were witnesses in court and subject to cross-examination. If there had been no other proof of the marriage ceremony I doubt the admissibility of the copy of the marriage record. But the copy only as corroborative of what had already been proved and still remains undisputed.
This case is now in the attitude of the Taylor case, 52 Miss. 84, wherein Mr. Justice Chalmers concluded the opinion of the court with these words: "Deeming it impossible that the jury could have been misled, and the guilt established beyond any room for question, we must decline to do so."
Appellant was indicted and convicted in the Circuit Court of Warren County of the crime of bigamy and sentenced to the penitentiary for a term of seven years. From that judgment, he prosecutes this appeal.
The State undertook to prove that appellant married a distant cousin, Mary D'Antonio, in 1932, who is still living, without a divorce from that marriage; and, in 1938, he married Josephine Barranco. The last marriage was a regular ceremonial marriage under the laws of this State. Appellant does not question that. It is the first alleged marriage that is questioned. Appellant's contention is that the evidence did not tend to establish such a marriage, and, therefore, there should have been a directed verdict of not guilty, as requested.
At the time of the trial, appellant and his last wife were separated and living apart. She was pregnant. By Mary D'Antonio, there was a child living, born in due time after their alleged marriage. The State undertook to prove a regular ceremonial marriage at Algiers, Louisiana, between appellant and Mary D'Antonio, according to the laws of that state. Appellant contends that there was a failure to prove such a marriage; that the evidence did not even tend to prove it. Conceding, without deciding the soundness of that position, the evidence showed a marriage between them under the laws of this State — a common law marriage under Sections 2363-2367 of the Code of 1930. The evidence showed without conflict that after the Louisiana ceremony, appellant and Mary D'Antonio returned to the Town of Picayune in this State and for several months lived and cohabited together as man and wife and openly proclaimed that relationship. Under the statutes referred to, that constituted a valid marriage. Jourdan v. Jourdan, 181 Miss. 176, 179 So. 268; Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624; Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas., 1918E, 1230; Sykes v. Sykes, 162 Miss. 487, 139 So. 853, 858; and Sims v. Sims, 122 Miss. 745, 85 So. 73.
Appellant contends that, under the authority of Graves v. State, 134 Miss. 547, 99 So. 364, proof of a common law marriage was not permissible in a trial for bigamy. That case is not in point. The Court held that a living and cohabiting together as man and wife in Louisiana did not constitute a common-law marriage in this State, because such marriages are not recognized by the law of Louisiana — only ceremonial marriages are permitted there. Here, we have a common law marriage in this State, according to the laws of this State, which is as valid and binding as the statutory ceremonial marriage.
Affirmed.