Opinion
December 31, 1913.
Frank X. McCaffry [ Leonard F. Fish with him on the brief], for the appellant.
Edward A. Freshman, Assistant District Attorney [ James C. Cropsey, District Attorney, with him on the brief], for the respondent.
The charge of the indictment is that the defendant in the county of Kings on April 12, 1893, did marry Rachel Siegel. Much of the evidence offered by the People was excluded or was stricken out, but there is the testimony of the brother-in-law of Rachel Siegel that on the evening of that day and year at his home in Passaic, N.J., forty or fifty people were assembled, including the defendant and Rachel Siegel and Rabbi Levinson; that the defendant and Rachel Siegel "said what they had to say;" that the witness supposed that "they were satisfied to get married;" that Jewish weddings always take place under a canopy; that there was a canopy in the house for that evening only. And there is the testimony of the wife of the said witness that she also saw the defendant and Rachel and the rabbi; that she heard the defendant and Rachel say that they were willing to marry one another. "Q. What else did he say and what else did she say? A. What else? They married." And she testifies that defendant placed a ring on Rachel's finger. This witness corroborated her husband as to the canopy and also testified that it was used exclusively at Jewish weddings. She also testified that she had seen the said rabbi perform other marriages in New Jersey. It was testified that Rabbi Levinson was dead. There were no denials of these testimonies. I think that upon the record the proof was sufficient to justify a finding of the marriage. ( Fleming v. People, 27 N.Y. 329; Lord v. State, 17 Neb. 526, 529; People v. Calder, 30 Mich. 85, 88; 1 Russell Crimes [7th Eng. ed.], 982; 1 Bishop Mar., Div. Sep. §§ 1048, 1055; 3 Greenl. Ev. [16th ed.] § 204; Whart. Crim. Ev. [10th ed.] § 170.)
The general statutes of New Jersey as offered were properly read in evidence. (Code Civ. Proc. § 942; Code Crim. Proc. § 392; Congregational Unitarian Society v. Hale, 29 App. Div. 399; Hecla Powder Co. v. Sigua Iron Co., 157 N.Y. 443; Matter of Huss, 126 id. 537). The variance between the charge that the first marriage occurred in the county of Kings and the proof that it occurred in New Jersey was not material in this case. (Code Crim. Proc. § 285.)
The court admitted the testimony of Goldberg, the brother-in-law of Rachel Siegel, that the defendant had lived in New York city with the woman and had named her as his wife, and of M. Greenberg that the defendant had called the said Rachel his wife, and there was read in evidence the sworn application of the defendant for the marriage license with the alleged second wife, in which he stated that his name was Portman; that this was his second marriage and that his first wife was dead. Although such testimony may have been insufficient in itself to establish the marriage (See discussion of the "eye witness" rule in Wigmore on Ev. § 2086; People v. Humphrey, 7 Johns. 314; Fenton v. Reed, 4 id. 52; Hayes v. People, 25 N.Y. 390; Eisenlord v. Clum, 126 id. 552, 562; Clayton v. Wardell, 4 id. 230; Gahagan v. People, 1 Park. Cr. Rep. 378), yet it was competent and relevant upon the issue whether there had been a marriage. ( Gahagan v. People, 1 Park. Cr. Rep. 378, cited by Wigm. Ev. 2086. See, too, Miles v. United States, 103 U.S. 304; Wigm. Ev. § 2086.)
The court at the request of the defendant's counsel charged finally: "This indictment having charged this defendant with having entered into a marriage ceremony, marriage relation, marriage contract, with Rachel Siegel, on the 12th day of April, 1893, that the People are concluded by that allegation and must establish a marriage upon that date, beyond a reasonable doubt, and in the event of their failure to so establish such marriage upon such date, beyond a reasonable doubt, the defendant is entitled to an acquittal," and also that the jury "must find the establishment of the marriage contract upon the date that I have referred to, as a separate proposition, beyond a reasonable doubt, before they can take up the consideration of any subsequent relationship." These instructions cured any previous error of the court as to the force and effect of the testimony last specified. ( Greenfield v. People, 85 N.Y. 90; People v. Benham, 160 id. 443.)
I advise affirmance of the judgment of conviction.
THOMAS, CARR, RICH and PUTNAM, JJ., concurred.
Judgment of conviction of the County Court of Kings county affirmed.