is necessary in civil actions,"1 in which marriage may be inferred to exist from evidence of reputation coupled with cohabitation. A marriage in fact must be proved. This may be done by the testimony of an eye witness to the ceremony,22 by that of the person who performed it, or by a marriage certificate.23 § 403. Proof of marriage by reputation, cohabitation and conduct. -Though mere cohabitation and holding out do not constitute marriage, in civil cases the existence of the marital relation may be inferred from evidence that the parties cohabited as man and wife, and were reputed to be such among their friends and acquaintances. In a prosecution for bigamy such evidence alone is not sufficient to prove the first marriage. Some of the cases admit evidence of cohabitation, conduct and reputation to cor 21 Halbrook v. State, 34 Ark. 511, riage records which are made re517, 36 Am. 17n. 22 Crane v. State, 94 Tenn. 86, 28 S. W. 317; People v. Perriman, 72 Mich. 184, 40 N. W. 425. Method of proving first marriage, see Elliott Evidence, § 2862. 23 2 Greenl. on Ev., § 461; 2 Stark. on Ev., 698; Faustre v. Commonwealth, 92 Ky. 34, 17 S. W. 189, 13 Ky. L. 347; State v. Johnson, 12 Minn. 476, 481, 93 Am. Dec. 241n; State v. Armstrong, 4 Minn. 335, 344; State v. Hodgskins, 19 Me. 155, 158, 36 Am. Dec. 742n; State v. Clark, 54 N. H. 456, 459; State v. Williams, 20 Iowa 98; Arnold v. State, 53 Ga. 574, 575; Johnson v. State, 60 Ark. 308, 30 S. W. 31; Swartz v. State, 7 Ohio Cir. Dec. 43. Proof that the ceremony was performed by a justice or other official will suffice without proving his appointment. This will be presumed. I Greenl. on Ev., §92; State v. Abbey, 29 Vt. 60, 65, 67 Am. Dec. 754. A constitutional provision that the accused shall be confronted with the witnesses against him does not exclude certified copies of mar ceivable by a statute. State v. Matlock, 70 Iowa 229, 30 N. W. 495. A marriage certificate, though inadmissible as such because not properly authenticated and certified according to statute, may, perhaps, be received as a part of the res gesta of the marriage if it is shown to have been made and delivered at the time. People v. Crawford, 133 N. Y. 535, 30 N. E. 1148. See, also, ante, § 383, as to proof of marriage. 24 Gahagan v. People, I Park. Cr. (N. Y.) 378, 383; People v. McQuaid, 85 Mich. 123, 48 N. W. 161; Hayes v. People, 25 N. Y. 390, 393, 396, 82 Am. Dec. 364; State v. Nadal, 69 Iowa 478, 29 N. W. 451; United States v. Tenney, 2 Ariz. 127, 11 Pac. 472; Rice v. Commonwealth (Ky.), 105 S. W. 123. 31 Ky. L. 1354; State v. Pendleton, 67 Kan. 180, 72 Pac. 527; People v. Mendenhall, 119 Mich. 404, 78 N. W. 325, 75 Am. St. 408; Hearne v. State, 50 Tex. Cr. 431, 97 S. W. 1050: Coons v. State, 49 Tex. Cr. 256, 91 S. W. 1085. roborate direct evidence and to prove the continuance of the marriage. Other authorities reject it altogether." $404. The admissions of the accused as evidence to prove the marriage Primary evidence of the ceremony-When required.-The cases are not harmonious on the question whether the declarations of the accused are receivable to prove the ceremony of marriage, the names of the parties, or the time and place, when these facts are material. The admissions of the accused, deliberately made, that the marriage relation existed have been repeatedly received. 20 On the other hand, it has been repeatedly decided that the defendant's admissions would not dispense with primary, i.c., written evidence, of the specific facts regarding the ceremony, etc., at least where such evidence was in existence and could be procured. Such evidence is not conclusive and creates no presump 27 State v. Roswell, 6 Conn. 446; State v. Johnson, 12 Minn. 476, 482, 93 Am. Dec. 241n; Adkisson v. State, 34 Tex. Cr. 296, 30 S. W. 357; State v. Cooper, 103 Mo. 266, 15 S. W. 327; Tison v. State, 125 Ga. 7, 53 S. E. 809. "State v. Goulden, 134 N. Car. 743, 47 S. E. 450; Caldwell v. State, 146 Ala. 141, 41 So. 473; Le Grand v. State, 88 Ark. 135, 113 S. W. 1028; Murphy v. State, 122 Ga. 149, 50 S. E. 48; Tucker v. People, 117 Ill. 88, 90, 7 N. E. 51; State v. Melton, 120 N. Car. 591, 26 S. E. 933; State v. Abbey, 29 Vt. 60, 64, 67 Am. Dec. 754; Commonwealth v. Jackson, II Bush (Ky.) 679, 21 Am. 225; Halbrook v. State, 34 Ark. 511, 517, 36 Am. 17n; Oneale v. Commonwealth, 17 Gratt. (Va.) 582; State v. Nadal, 69 Iowa 478, 482, 29 N. W. 451; Miles v. United States, 103 U. S. 304, 311, 26 L. ed. 481; Stanglein v. State, 17 Ohio St. 453, 561; United States v. Tenney, 2 Ariz. 29, 8 Pac. 295; State v. Hodgskins, 19 Me. 155, 158, 36 Am. Dec. 742n; Commonwealth v. Mur tagh, 1 Ashm. (Pa.) 272, 275; Warner v. Commonwealth, 2 Va. Cas. 95; State v. Hilton, 3 Rich. (S. Car.) 434, 435, 45 Am. Dec. 783; Wolverton v. State, 16 Ohio 173, 178, 47 Am. Dec. 373; Crane v. State, 94 Tenn. 86, 28 S. W. 317; State v. Ulrich, 110 Mo. 350, 19 S. W. 656; State v. Hughes, 35 Kan. 626, 12 Pac. 28, 57 Am. 195; State v. Jenkins, 139 Mo. 535, 41 S. W. 220. See Elliott Evidence, § 2863. Letters written by the accused to his first wife were received against him in Tucker v. People, 122 Ill. 583, 13 N. E. 809. The silence of the accused under circumstances where it is his duty to speak may doubtless be proved against him as an admission of his marriage. "People v. Humphrey, 7 Johns. (N. Y.) 314; State v. Roswell, 6 Conn. 446, 449; Commonwealth v. Norcross, 9 Mass. 492; Commonwealth v. Littlejohn, 15 Mass. 163: Miner v. People, 58 Ill. 59, 60; Sherman v. People, 13 Hun (N. Y.) 575; South v. People, 98 Ill. 261, 265; State v. Armstrong, 4 Minn. 335, 344. tion of law that a valid marriage existed at the time of the bigamous union. It should go to the jury for what it is worth. Coupled with evidence of reputation and cohabitation, it is very strong proof of a valid marriage. 28 § 405. Marriage certificates and transcripts of records as evidence -Presumption of validity-Venue.-A marriage, celebrated in a foreign country, may be proved by a transcript of the foreign record,29 if it is also shown that the law of the place of the marriage required that a record should be made and kept, and that the record was made and kept under and in conformity with that law.30 A marriage certificate or a license and the return are competent as evidence under the rule admitting the entries of third persons made in the course of their professional employment, though there be no evidence of the official character of the person performing the ceremony except his own statement following his signature. But a certified copy of a marriage license and of the return thereto by the person officiating at the marriage were held to be inadmissible on a trial for bigamy to prove the prior marriage under a statute providing that certified copies of certain records may be admitted in evidence on 28 State v. Sanders, 30 Iowa 582, 584; State v. Cooper, 103 Mo. 266, 15 S. W. 327; People v. Crawford, 133 N. Y. 535, 30 N. E. 1148. Evidence that the defendant cohabited with a woman and had children by her who lived with him, that the woman signed and acknowledged deeds as his wife, sued for and was granted a divorce, the defendant answering in the suit, is competent, and has been held sufficient proof of a marriage. State v. Gonce, 79 Mo. 600. Proof that A was granted a divorce from B on a given date is strong evidence that a marriage had existed between A and B at that date, as a divorce is never granted unless a marriage is proved or admitted. Halbrook V. State, 34 Ark. 511, 519, 36 Am. 17n; Pontier v. State, 107 Md. 384, 68 Atl. 31 1059. But in State.v. Sharkey, 73 N. J. L. 491, 63 Atl. 866, a record of a divorce suit by the prosecuting witness against accused was held to be inadmissible as proof of a former marriage on the ground that the suit was a civil proceeding and not admissible because the proof was not beyond a reasonable doubt. As to a petition for a divorce, see Adkisson v. State, 34 Tex. Cr. 296, 30 S. W. 357. 29 State v. Dooris, 40 Conn. 145: Stanglein v. State, 17 Ohio St. 453; State v. Melton, 120 N. Car. 591, 26 S. E. 933; Nelson v. State, 151 Ala. 2, 43 So. 966. 30 Tucker v. People, 117 Ill. 88, 7 N. E. 51; Pontier v. State, 107 Md. 384, 68 Atl. 1059. 31 Baker v. State (Tex. Cr.), 118 S. W. 542. three days' notice when notice was not given.32 A marriage shown to have been solemnized will be presumed to be valid until its invalidity is shown. The rule that, when a marriage has been consummated, it will be presumed that the former marriage of one of the parties has been legally dissolved, does not apply in a prosecution for bigamy, so, where the state showed that the accused had been married to a woman who was still living at the time of his second marriage to another, the burden was on him to show that his former marriage had been legally dissolved.33 The burden of proof, where the validity of the first marriage is disputed, is upon the prosecution,34 and direct evidence of non-assent by either party to the marriage is relevant to rebut the presumption of validity.35 The burden is on the accused to prove the validity of a decree of divorce granted before the alleged bigamous marriage and offered by him in evidence where its validity is attacked by the prosecution. The venue of the bigamous marriage, unless essential to confer jurisdiction, or to establish the specific character of the offense, need not be proved precisely as laid.38 36 37 § 406. Bigamous cohabitation.-The corpus delicti of bigamy is the unlawful marriage contract. Cohabitation in a bigamous union is not material, and need not be proved unless its proof is required by statute.39 But proof of unlawful cohabitation is always admissible as tending to show the relations of the parties and to corroborate the evidence of a marriage. The first wife will not be permitted to testify against the defendant."1 36 39 State v. Nadal, 69 Iowa 478, 483, 29 N. W. 451. 39 State v. Sloan, 55 Iowa 217, 7 N. W. 516; Nelms v. State, 84 Ga. 466, 20 Am. St. 377, 10 S. E. 1087; Gise v. Commonwealth, 81 Pa. St. 428; State v. Patterson, 2 Ired. (N. Car.) 346, 38 Am. Dec. 699. 40 United States v. Tenney, 2 Ariz. 127, II Pac. 472. "Underhill on Ev., § 168; State v. People v. Spoor, 235 Ill. 230, 85 Patterson, 2 Ired. (N. Car.) 346, 38 Am. Dec. 699; Williams v. State, 44 Tucker v. People, 117 Ill. 88, 92, Ala. 24; State v. McDavid, 15 La. N. E. 207, 126 Am. St. 1971. CHAPTER XXVIII. RAPE. $407. Rape defined-The non-consent $414. The prosecutrix as a witness of the prosecutrix Pre- consent. 468. Rape by infants. 410. Proving the details to impeach 411. Delay in making complaintReasons for delay. 412. Medical testimony. 413. Relevancy of the physical condition of the prosecutrix. -Her competency and credibility-Infancy of the prosecutrix when rendering her incompetent as a witness. 415. The prior relations of the parties. 416. Proof of carnal knowledge 417. The force or fraud employed- § 407. Rape defined-The non-consent of the prosecutrix-Presumption of incapacity to consent.-Rape is the crime of obtaining carnal knowledge of a female forcibly and without her consent,' or "against her will," the latter word as thus used being synonymous with desire or inclination.2 The absence of consent, where it is not presumed from the immaturity of the female, must always be proved beyond a reasonable doubt. The absence of consent need not be the result of a concious exercise of volition withholding it. It is not always 14 Bl. Com. 210. In Hale's Pleas of the Crown this crime is defined as "the carnal knowledge of any woman above the age of ten years against her will, and of a woman child under the age of ten years with or against her will." It is not easy to express in one definition all the refinements of the cases. Statutory definitions differ, and cases may be stated which are punishable as rape in some jurisdictions, while not in others. 2 People v. Crosswell, 13 Mich. 427, 432, 87 Am. Dec. 774; Brown v. State, 127 Wis. 193, 106 N. W. 536. See State v. Pickett, 11 Nev. 255, 21 Am. 754. 3 Elliott Evidence, § 3093. |