The Portland daily press., 1874-02-02

able doubt that she is guilty.
1t is incumbent on the government to prove the
two marriages; that the respondent is the person
who married John Waller in 1862, and the per son
who marie Edward +. Waite in 1873, and also to
prove that at the time of her marriage to Mr. Waite
John Waller her lawful husband was living. These
are the oDly three poin which under this indict-
ment 1t is incumbent on the government to prove.
That the respondent was married to Mr.. Waite in
disputed that John Waller is the person he repre-.
sents himself to be, and therefore if he the law
full husband of the respondent at the time of her
marriage to Mr. Waite that disposes of tie second
point, and the only thing remaining of which it is
necessary for the government to satisfy you is that
the time of her marrge with Mr. Waite she was the
lawful wife OF John Waller. If the government has
satisfied you of that ac then of your verdict
must be guilty: On the other hand if you have any
entitled to your verdict. Whether the respondent
was the lawful wife of John Waller at the time of
her marriage with Mr.. Waite is question which is
easily divided into two. First suppose the respond
ent to be the person whom the government alleges,
was her marriage with John Waller a lawful one
and secondly was she in fact the person who in 1862
First the legality of the marriage of tho re-
sponient, if her identity has been established with
Waller.
In criminal prosecutions undoubtedly, a very diff
rule holds in regard to the proof of marriage
required from tn 1t which prevails in civil ac-
tons. For the purpose OF creating civil liability,
marriage may be proved by reput ton, by the con-
duct of the parties by their ion of the rea-
ton OF husband and wife subsistng between them
essential element OF the crime which is he alleged
is that there prior legal marriage, and it in
cumbent upon the government to prove, not a mar
rage by reputation, but marriage in fact.
This is a foreign marriage and there is distinc-
ton between the proof Of contracts outside of
the State and those made wit n If it was a mar
rage within the State the law would require the
best evidence, but of maria contracted Inside OF
the tate it does not necessa lily require SO high de-
gree of proof but 1t does require proof tn at
the marriage alleged to have been celebrated was
celebrated according to the laws Of the country in
which the marriage took place. So that l feel
bound to say to you that liz this case the testimony
of the witnesses who we've present at the marriage
as to its solemnization taken alone, is not sufficient
to show that legal MARI iage, according to the
laws of Nova Scotia, tad been celebrated But on
the other haud the confession OF the respondent as
to a previous marriage is legal and pertinent EVIL
dence. know of no crime that cannot be proved
by the Of the parties, and when the re-
spondent is charged with the GRIM of polygamy, the
fact of the marriage with Mr.. Waite being admitted
II she has confessed that prior 10 that she had mar
red 'ormcr husband that is co.nDetent evidence
against her. The claim OF the government Is that
TINS confession was made to Mrs. Holden and that it
Is tanned in every letter introduced in the in
Whlch she signs herself your LOVING wife, etc. you
nnu sucn confession the then it is strength
to the marriage alleged TO have been Confessed She
lived With John Waller and by him ha two children
Az .nese leinarhs M WeIe based upon the superstition
ne then took up The question of Identity. telling
the jury it was purely question of fact Tor them "a
determine. He stated Cue theory Of the cove n
ment and that of the defence, and gave them the
general rules to al them in weizhing the testimo nv
properly.
having supper procee led discuss the case. Moth
in. was heard from them till a quarter past eleven
when they sent iu for further instructions During
ahs time the crowd remained i'll the court room un
diminished anu the corridors were throLged with
men. The jury requested the stenograpner to reat
the testimony of Mrs. Holden in relation 10 tne al
legged concession and then asked the Judge 10 repea
instruction upon n, question of former marriage
which lie did substantially as given before
Inc foreman then stared that there was dlHer
! ence IN opinion on the identity. The court STATED
tnat that was purely question of fact for them ant
! ne Souid not help them upon that point
! Tue jury ihen retired again and al five minutes q
we've Tue count adjourned until Monday morning.
AZ nan; nan past twelve the foreman sent VOID tina
discharged from any further cnsd ey ,n' Of FIN
Ease II they had agreed il must have been neces
| saay 70 nave Kept them locked up until Monica,
notMqg. 1t is un ierstood that the Jury stood min
LOT acquittal and three for conviction, but upo,
"nlch question-whether the former marriage. O