Opinion
(December Term, 1845.)
1. It is not necessary to the validity of a marriage that the parties should have obtained a license from the clerk of the county court. The omission of the license only subjects the minister or justice performing the ceremony to a penalty.
2. It is sufficient proof of a marriage that the ceremony was performed by one who was in the known enjoyment of the office of a justice of the peace and notoriously acting as such. It is not necessary to produce his commission from the Governor.
APPEAL from RANDOLPH Fall Term, 1845; Dick, J.
Attorney-General for the State.
No counsel for defendant.
The prisoner was indicted for bigamy in marrying Elizabeth (24) Robbins, a wife to whom he had been some years before married being still alive. To show the previous marriage, a witness proved that he was present, some thirty years before that time, when the defendant was married to his daughter, Elizabeth Williams, by one Michael Harvey, and that she, the said Elizabeth, was still alive; that the parties lived together for several years, when they separated, and the wife returned to her father's house. The defendant Robbins had obtained no license from the clerk of the county court for his marriage with Elizabeth Williams. It was further proved that Michael Harvey, for several years before the marriage of the defendant with Elizabeth Williams, and for many years thereafter, was an acting justice of the peace for Randolph County, and was known and acted as such, and the records of the court of pleas and quarter sessions of that county proved that, five years before the marriage, he had, in open court, taken the oaths of office as a magistrate. It was then proved by persons who were present that the defendant was married to Elizabeth Robbins in Randolph County in 1832, and that the ceremony was performed by one James Hodgins, who, it was proved, was an acting justice of the peace of Randolph County at the time he performed the ceremony.
The defendant offered evidence to show that he acted in ignorance of the law, and that he was advised by several persons that his marriage with Elizabeth Williams was void for the want of the clerk's license. This testimony was rejected. He further contended that there was no legal evidence to show that either Michael Harvey or James Hodgins was a justice of the peace for Randolph County at the time they respectively performed the ceremony; that the only evidence which could be received of the fact was the Governor's commission.
The court charged the jury, if they believed the testimony, the (25) defendant was guilty. He was convicted, and appealed.
We see no error committed by the presiding judge. The testimony tendered by the defendant to show that he thought and believed his first marriage to be void for the want of a license was properly rejected by the court. The law of this State, Rev. Stat., ch. 71, sec. 2, authorizes and empowers the clerks of the several county courts to grant marriage licenses, upon the applicant's giving bond and security agreeably to its provisions; but if a marriage is solemnized by a minister of the gospel or a magistrate, without a license, though he may subject himself to a penalty, the marriage is, notwithstanding, good to every intent and purpose. There can be no doubt, then, that the marriage between the defendant and Elizabeth Williams was legal and valid, although no license had been obtained from the clerk. It is a well settled principle that ignorance of the law excuses no criminal act. It is a maxim, Ignorantia juris, quod quisque tenetur scire, neminem excusat. Every person is presumed and bound to know the law. Thus Justice Blackstone states, if a man thinks he has a right to kill an excommunicated or outlawed person wherever he meets him, and does so, it is murder. 4 Bl. Com., 27. In this case the testimony was properly ruled out. The defendant's ignorance, if it really existed, might well be addressed to the court in mitigation of the punishment, when any discretion was given by the law.
We agree with his Honor in his charge. It was necessary for the State to prove a legal marriage between the defendant and Elizabeth Williams, and the performance of the ceremony between him and Elizabeth Robbins by a person duly qualified. It is not denied that the ceremony in each case was performed by the individual it is (26) alleged did perform it, but it is contended that there was no legal evidence that Michael Harvey and James Hodgins were justices of the peace at the time they officiated, and that the only competent evidence to prove the fact was the commission from the Governor. It was proved that both those individuals, at the time they performed the ceremony and before and after for a length of time, were and had been acting justices of the peace for the county of Randolph. To prove a general allegation that a person holds a particular office or situation it is usually sufficient to prove his acting in that capacity, 2 Star. Ev., 218. In the case of peace officers and justices of the peace it is sufficient to prove that they acted in those capacities, even in a case of murder. Berryman v. Wise, 4 Term, 366, per Justice Buller; Gorden's case. Leach, 581; Rex v. Shelby, Leach, 381; Rex v. Biggs, 3 P. Will., 427; Rex v. Verelst, 3 Camp., 432. In Gilliam v. Reddick, 26 N.C. 370, the principle is by the Court stated to be that the acts of an officer de facto acting openly and notoriously in the exercise of an office for a considerable length of time must be held as effectual, when they concern the rights of third persons or the public, as if they were the acts of rightful officers. Here the two individuals, Michael Harvey and James Hodgins, had been notoriously and for a considerable time, both before and after performing the marriage ceremonies in this case, acting as justices of the peace for Randolph County, and it must be taken that they were at that time justices of the peace, until the contrary be shown. The marriage was proved by persons who were present, and in King v. Allison, 1 Eng. Cr. Cases, it was decided that a marriage so proved was valid, although there was no proof of the registration of the marriage or of any license or publication of banns. That was a prosecution for bigamy.
The objections made in behalf of the defendant cannot avail (27) him.
PER CURIAM. No error.
Cited: Holmes v. Marshall, 72 N.C. 40; S. v. Parker, 106 N.C. 713; S. v. Davis, 109 N.C. 782.