#### *Moore v. Commonwealth.

December, 1838.

Grand Juror — Qualification—Freeholder*—Case at Bar. —To indictment found in S. county in September 1838, prisoner pleads in abatement that J. It. one of the grand jurors was not a freeholder. On the trial of the issue joined on this plea, it appears that the only land to which J. E. at the time of finding the indictment, had title, was a parcel in S. containing 691 acres, formerly part of a large' tract lying mostly in S. but partly In *W.*county; in which latter county the whole tract was offered for sale in 1815, for arrears of taxes, but was not sold, and those taxes remained unpaid on the 1st July 1838 ; that in 1834, the owner conveyed the-whole tract to a trustee, upon trust that if certain debts specified in the deed should not be paid within 6 months, the trustee should sell the land and pay those debts; but under this deed, no sale was ever made: that in 1837, the grantor in the trust deed sold and conveyed to J. K. the 691 acres, of which J. E. immediately received possession, and remained in possession at the time he was sworn as a grand juror. Verdict for commonwealth ; and motion to set the verdict aside held to have been properly overruled.

Bigamy — Evidence —Proof of Marriage — What Certificate of Marriage Admissible. — On a trial for bigamy, a certificate, stating that prisoner was married to J. F. by the person whose name is subscribed thereto, and appearing to have been returned by him to the county court, but nowise shewing that he was a person authorized to celebrate marriage, is offered in evidence by the prosecutor, “ for the purpose ” (as a bill of exceptions filed by the prisoner states) “ of proving, in connexion with other evidence, a marriage between the prisoner and J. F.” — and though objected to by the prisoner, is admitted by the court. On this ground, prisoner applies to the general court for a writ of error ; which is refused.

Same-Same — Same—License Need Not Be Produced.— On a trial for bigamy, evidence may be given of prisoner’s marriage under a license purporting to have been issued by the clerk of the proper court, and of the fact that such a license was issued to the prisoner, without producing the license itself, though it be within the power of the commonwealth.

Continuance- -Absence of Witness.†- — Case in which *226prisoner’s motion for a continuance on the ground, of the absence of a witness, was held to have been properly overruled.

Petition for writ of error to a judgment of the circuit superiour court of law and chancery for Scott county, rendered against the petitioner at September term 1838, upon an indictment for bigamy, in marrying *Martha M’Henry, while his wife Joanna M. (formerly Joanna M. Fleming) was alive. He was indicted by the name of William P. Moore, alias James A. Robertson. The grand jury was impanelled, and the indictment found, on the 10th day of September 1838.

On his arraignment, the prisoner pleaded in abatement, that John Rust, one of the grand jury who found the indictment, was not, at the time of the finding, a freeholder in the commonwealth of Virginia. Issue in fact being joined on this plea, it was found for the commonwealth. The prisoner moved to set aside the verdict, as contrary to the evidence; but the court overruled the motion, and the prisoner thereupon excepted, setting forth in his bill of exceptions the facts proved on the trial of the said issue. They were as follows—

By a patent dated January 7, 1796, a tract of land containing 12,903 acres, lying in what was then Washington county, was granted to John Fleming. After intermediate conveyances to and from various persons, (the deeds, which were set out in hasc verba, all appearing to have been regularly executed and duly recorded,) the whole tract came, by like conveyance, dated and. recorded on the 22nd of November 1834, into the possession of John Vaughan ; who, by deed dated the 28th of November 1834, and recorded on the following day, conveyed the same to Jonathan Draper, upon trust, that if the grantor should not, within six months, pay certain debts due from him to individuals who were named in the deed, Draper should proceed to advertise and sell the land, or so much as might be necessary, and pay the debts aforesaid out of the proceeds. Afterwards, by deed dated the 16th of November 1837, and recorded on the 21st of the same month, Vaughan and his wife bargained, sold and conveyed to John Rust, the grand juror aforesaid, for the consideration of S50 dollars, 691 acres lying in Scott county, parcel of the same land which had been conveyed to Draper *in trust. Rust was forthwith put in actual possession of the land sold him, and continued in such possession at the time he was sworn as a member of the grand jury ; and he had title to no other land. The tract of 12,903 acres had never been sold under the trust deed aforesaid. It was proved by a printed list transmitted to the clerk of Washington county by the auditor of public accounts, and duly certified by him pursuant to law, that the said tract of 12,903 acres, including the land conveyed as aforesaid to Rust, was delinquent for the nonpayment of taxes due thereon for the years 1807, 1809, 1811 and 1814, in' the name of the then owner, and had been offered for sale in Washington county in the year 1815; and not being sold, it appeared to him (the auditor) that the same had become vested in the president and directors of the literary fund. It was also proved that at the time the said tract of 12,903 acres was offered for sale as aforesaid in Washington county, the county of Scott was in existence, in which last mentioned county the greater part of the said tract was; that the said tract was not at any time offered for sale in the said county of Scott, for such delinquency; and that the same was not redeemed by the payment of the said taxes, prior to the first day of July 1838. And these were certified to be. all the facts proved on the trial of the said issue.

The plea in abatement being disposed of the prisoner pleaded not guilty to the indictment ; and the jury impanelled to try the issue on that plea having found him guilty, and ascertained the term of his imprisonment in the penitentiary to be four years, the circuit court pronounced sentence accordingly.

At the trial on the plea of not guilty, the prisoner filed three other bills of exceptions to opinions of the court given against him.

The first bill states, that on the trial the attorney for the commonwealth offered to give in evidence (for the *purpose of proving, in connection with other evidence, a marriage between Moore and Joanna M. Fleming) the following copy, with the certificate thereto annexed, viz. “ December 2,1829. The following persons have been united together in holy matrimony by me in the past year, within'the limits of Nottoway county, viz. Wm. P. Moore and Joanna M. Fleming.-” [Six other persons were named in the list.] (Signed) “ Thos. Richardson.” —“ The foregoing is a copy of the return of marriages made to this office for 1829, by Thos. Richardson according to law, and of record in this office. Given under my hand as clerk of Nottoway county court, the 19th day of September 1837. (Signed) “F. Fitzger aid.” — -To the introduction of which paper the prisoner objected, as not being legal evidence; but the court overruled the objection and permitted the said paper to be read to the jury ; and the prisoner excepted.

The 2d bill of exceptions states, that on the trial the commonwealth introduced James Kerr, a preacher of the methodist episcopal church, as a witness, who deposed, that by virtue of a marriage license, purporting to have been issued by the clerk of Scott county, presented to him by the prisoner, he married, according to the forms of his church, the prisoner and Martha M’Henry, the persons mentioned in said license, using, in the celebration of said marriage, the words, You, James A. Robertson, do take this woman standing by you to be your lawfully wedded wife ? To which he answered, Yes. And You, Martha M’Henry, do take this man standing by you to be your lawfully wedded husband ? To which she answered, Yes. On being required to produce the license aforesaid, the witness said he had left it at home, where it then was, within his power to produce, if he had time to go for it. An attested copy of the certifi*227cate of the said witness Kerr, in the words and figures following, viz. “ A list of marriages solemnized by James Kerr in *the year 1836 — James A. Robertson and Martha M’Henry, Oct. 20th.” [Four other persons were named in this list.] (Signed) James Kerr.” — “ A copy from the records of Scott county court. Teste John S. Martin, C. S. C.” — was also produced and read to the jury, together with the bond of the prisoner and his surety, taken by the clerk on granting the said marriage license. John S. Martin, the clerk aforesaid, was likewise introduced as a witness for the commonwealth, and deposed, that he recollected to have issued to the prisoner, on his application, a marriage license, authorizing any licensed minister of the gospel to join together in marriage the prisoner, by the name of James A. Robertson, and Martha M’Henry, a female known to him to be, at the time of issuing such license, above the age of twelve years. To the introduction of all which evidence, except the aforesaid certificate of the preacher Kerr, the prisoner objected, upon the ground that the said marriage license, being within the power of the commonwealth ought to be produced, and that no evidence aliunde could supply the absence of the paper; and that, therefore, the evidence objected to was illegal and improper to be submitted to the jury. But the court, without giving any opinion on the weight of said evidence, but deeming and deciding that it was admissible, overruled the objection, and permitted the statements of the two witnesses aforesaid, and the papers above mentioned, to go to the jury as evidence. To which opinion of the court the prisoner excepted.

The 3d bill of exceptions states, that on the calling of the cause the prisoner moved the court for a continuance thereof, upon a special affidavit made by him in open court; in which he stated, That he was not then ready for trial on account of the absence of his father, whom he deemed a material witness for him, without whose testimony he could not safely go to trial. That he could not prove, by any other witness known to him, *the facts he expected to prove by his father. That he expected to procure his attendance at the next term. That since the last term, he had taken out two subpoenas for him, one of which he had enclosed to him in a letter, which he caused to be put into the post office at Scott courthouse four or five weeks before the commencement of the term. That he expected to prove by the witness, that before the marriage for which the affiant was indicted, he (the witness) had written to the affiant letters informing him that his wife was dead, and particularly a letter dated Manchester, 19th September 1837 (set out in hsec verba in the affidavit) wherein the writer assigned a reason for having untruly informed the affiant, by a previous letter, that his wife was dead ; and said in concluding, “If your lawyer thinks I can be of any service to you, you can let me know by letter, and send a subpoena.” And that he further expected the witness to prove, that at the time of affiant’s marriage with his wife she was under the age of 21 years ; and to bring with him papers, which affiant deemed important to his defence. But the affidavit did not state that the witness was expected to prove, that the wife of the affiant was under the age of twelve years at the time of her marriage ; nor did it state the contents or character of the papers which the witness was expected to bring with him. The letter set out in the affidavit bore the postmark “Richmond,” and appeared to have been mailed there. The counsel for the prisoner proved that he enclosed one of the subpoenas for the witness, taken out as aforesaid, in a letter addressed to the sheriff of Chesterfield, which he put into the post office in time to have procured the attendance of the witness. Neither subpoena had been returned to the court, nor was it known what had become of them after they were mailed. The only witnesses who identified, or (so far as was known) could identify the prisoner, were one Freeman and his wife, the brother in *law and sister of the prisoner, who gave other very important testimony for the commonwealth. These witnesses resided in Smyth county, 60 miles from Scott courthouse, and were brought to court by attachments ; when Freeman assigned as a reason for not obeying the summons of the court, that he was a very poor man, and had not the means of travelling to the same. He further stated his intention of leaving the commonwealth a year thereafter. It appeared that the commonwealth was prevented by the absence of Freeman and his wife at the previous term, from laying the indictment before the grand jury, and could not have safely gone to trial without their testimony. The circuit court, “not perceiving the importance or even admissibility of the testimony expected to be given by the prisoner’s father, for any other purpose than as tending to diminish his punishment, if it could legally have that effect, and doubting whether the commonwealth could ever be as well prepared at a future time for the trial of the case, and above all whether the prisoner, who had been confined in Scott jail on this charge for nearly 12 months, had used such diligence in endeavouring to procure the attendance of his witness, as, under the circumstances of the case, entitled him to the continuance asked for,” — overruled his motion and refused to continue the case. To which opinion he excepted.

R. G. Scott, for the petitioner,

submitted, 1. That the issue on the plea in abatement ought to have been found for the prisoner, as the grand juror Rust was not a freeholder at the time he was sworn, the land claimed by him being vested,.by forfeiture, in the commonwealth for the president and directors of the literary fund. 2. He contended that the circuit court erred in admitting the certificate of Thomas Richardson as evidence against the prisoner. That although, by the 14th section of the act to regulate the solemnization of marriages, *1 Rev. Code, ch. 106, p. 398, the proper and regular certificate, made -in conformity with that section, is declared to be “evidence *228of all such marriages,” yet it never was the design of the legislature that in a criminal prosecution, the same should, of itself, be received as evidence of that fact, or as evidence tending to prove that fact. Such an interpretation of the clause would be to substitute the ex parte certificate of a private and irresponsible person, for legal proof given in open court on oath, and to produce the conviction of one chaxged with crime without his being able to crossexamine or contradict, or having the privilege of confronting his accuser. But, even if this view of the section referred to were wrong, yet the paper permitted to go as evidence against the prisoner was not such as the act of assembly required. Evidence of Richardson’s authority to make such certificate should have appeared, either on the face of the certificate, or by testimony aliunde. Whenever, by statute, persons filling particular stations in life are authorized to do certain acts, and they undertake to act under the statute, and furnish evidence that they are so acting, it must clearly appear that they are the persons described by the statute, and are performing their functions by virtue of the same. The certificate here does not shew, and no other evidence in the case shews, that Richardson was one of the persons authorized by law to solemnize marriages, or to grant the certificate in question. He does not describe himself as a minister of the gospel, nor does he claim for himself any other character that would invest him with legal authority to solemnize marriages. It is a simple certificate that he has solemnized marriages in the year 1829, between certain persons named in the certificate; and there was no proof to supply this omission. 3. That the circuit court erred in admitting secondary proof of a license to marry the prisoner and Martha M’Henry, not only without evidence that the license *had been lost or destroyed, but in the face of positive testimony that it existed and could be produced by the commonwealth. 4. He submitted, that the continuance asked for by the prisoner ought to have been granted.

*

Grand Juror — Qualification — Freeholder.— Mortgagors, or grantors in deeds of trust made to secure debts, while in possession and entitled to the equity of redemption, are good grand jurors in Virginia. Burcher’s Case, 2 Rob. 828, Com. v. Helmondollor. 4 Gratt. 540, both citing the principal case. So the legal title in the person is clearly not necessary to constitute him a freeholder. State v. McAllister, 38 W. Va. 509, 18 S. E. Rep. 779, citing the principal case ; Burcher’s Case, 2 Rob. 827. See further, on this subject, Com. v. Carter, 2 Va. Cas. 319, and foot-note; monographic *note*on “Indictments, Informations and Presentments ” appended to Boyle v. Com., 14 Gratt. 674.

Same — Want of Qualification — How Objection Hade. —See *foot-note*to Com. v. Cherry, 2 Va. Cas. 20 ; Eastham v. Holt, 43 W. Va. 619, 27 S. E. Rep. 890. citing the principal case : monographic *note*on “ Indictments. Informations and Presentments ” appended to Boyle v. Com., 14 Gratt. 674.

Pleas in Abatement — On What Founded. — Pleas in abatement are either founded on some defect apparent on the face of the record, or upon some matter of fact extrinsic of the record, which renders it insufficient. Tilley v. Com., 89 Va. 153, 15 S. E. Rep. 526, citing the principal case; Day v. Com., 2 Gratt. 562, and Com. v. Long, 2 Va. Cas. 318. On the general subject of ideas in abatement, see monographic *note*on “Abatement, Pleas in” appended to Warren v. Saunders, 27 Gratt. 259.

†

(Continuance —Absence of Witness. — See mono-*226graphic *note*on “ Continuances ” appended to Harman v. Howe, 27 Gratt. 676.

PER CURIAM,

Writ of error refused.