Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-01-13
THE LANDES BIGAMY CASE.
DECISION OF JUDGE benson. AS EXAM
INING MAGISTRATE.
The Defendant is Held to Answer Upon
the Cbarge-Review Of the Law
and Testimony.


and Testimony.
Judge benson yesterday rendered his de-
cision SIS examining magistrate in the Landes-
Finn bigamy case. The evidence was quite
fully reported at the time Of the examination
some three weeks since, and the conclusions
to be rendered upon it have been awaited
with much interest and comment The de-
PENDANT was accompanied by friends in the
Courtroom at the time the decision was
rendered, and at its conclusion he was held
to answer TO the charge of bigamy, with bail
fixed at 81, 500, which was given and defend
ant released awaiting tliaL The following is
the decision in the case:
The defendant in this case brought before
me, sitting as a committing magistrate, Tor exam
ination upon charge Of bigamy. The hearing oc-
cup;ed several DAYS, and the evidence Is vOlumnouS
conflicting, and i'll many respects unsatisfactory
Some complicated questions OF law arose during the
investigation, and numerous authorities were cited,
most OF which have carefully examined.
The crime charged is defined by Section Isl OF the
Penal Code of this State follows: Every person
having husband or wife living who nlarrles any
other person is guilty of bigamy" Upon
was admitted-tha the defendant. on the 9Th day OF
August, 1880, was regularly married to one Emma
Hack. and so the only ultimate question OF fact
left for determination Is whether or not Landes
had a wife living at that time. In
other words, was he, before then, lawfully
married to Julia A. Finn, who claims to have been
at that time his wife.
Just what acts will constitute a marriage, and
what will not, sometimes becomes very nice ques
ton In certain classes OF actions the law is swift
to presume a marriage, and Will treat persons as
husband and wife when, by the letter OF the law,
they are not but in actions founded upon the hy-
pothesls of lawful marriage the law renders no aid
by presuming ANYTHING, and the party having the
burden OF proof must establish the facts to const
tute the relation.
WHAT Is MARRIAGE?
Section 50 of the Civil Code reads: " Marriage is
personal relation arising out of civil contract to
which the consent OF parties capable OF making 1t IS
necessary. Consent alone Will not constitute mar
rage it must be followed by soemniZ alton, or by
4 mutual assumption of marital rights, duties
or obligations And Section 81 reads Consent
to and subsequent contamination OF marriage may be
manifested in any FORM and may be proven under the
same general rules of evidence as facts in other
cases" These sections are in no sense III conflict
with Sections 60 to 10 of the Civil Code, providing
for the manner OF sOemniZing and authentIcsting
marriages The law clearly recognizes two kinds Of
marriages-thoSe which are solemnizad and those
which not The one Is a. valid as the other;
both legal marriages, and the difference is not
at AL III uSs re VI NdIl4ly, uAC iiIittS -.
neT OF lF3oi. Ar+ 4 any thiHS NCts wanting u
make this intent Of the Code clear Section 6S sup
plies the want, aud says: g Marriage must be IL
c4used soleInniZed authenticated aud recorded,
provided in this article, butnon-complance with its
provisions does not nyalIdae any lawful marriage.
The various sections Of the Codes, both those
quoted and Others, amount simply to formulation
into concise sentences Of what was the common law
before the Codes OF California were heard of : that
is, marriage is civil contract, depending simply
upon the mutual consent of two competent contract
ing parties, aud cor summatOn Of tn agreement by
mutual assumption OF marital rights, duties or OBJ
legations.
In the case at bar there is no claim Of a solem
niz marriage, evidence of any license issued,
aud no preteuse that any record was ever made or
genuine certificate issued. duly sulemnlZed mar
rage is proven by The record which is the best evil
dence and which proves all that is necessary to
establish the fact, while marriage not solemnized
can only be proven in case OF this kind by showing
a mutual contract of present marriage, followed by
a contamination Do the proofs in this case show
satisfactorily that defendant and Julia A Finn in
the year 1879 entered into mutual contract to
become man and wife, and did they follow up such
contract by q mutual assump tion OF marital rights
This brings to an investigation Of the evidence
adduced, but at the very threshold of the inquiry
we met by most
PERPLEXING QUESTION OF LAW.
Upon the hearing the evidence Of Julia A. Landes,
otherwise Finn was taken with the understanding
that its competency should be examined into
maj ana II pldltl W t4itb
out her testimony the defendant could not possibly
be convicted and, therefore, if she is not a COM
peteut witness, the defendant must be discharged
without further inquiry.
Section 1881 of the Code of Civil Procedure de.
cares in most explicit language tn It neither hus-
band nor wife shall be witness against the other
consort, except in criminal action or proceeding
for crime committed by one against the other"
1t is claimed by the prosecution that tins Is crimi
nal action for a crime committed against the wife,
and therefore she IS competent. But let turn to
the Penal Code. Section 1922 reads Except
with the consent of both, or in case of criminal
violence upon one by the other, neither husband
nor wife Is competent witness for ag inst the
other in a criminal action or proceeding to which
one or both are parties And Section 1921 reads:
The rules for determining the competency OF wit,
nesses in civil actions applicable also to criminal
actions and proceedings, except as otherwise pro-
yide1 IN this Code
If Section 1922 OF the Penal Code and Section 1881 Of
OF the Code of Civil Procedure really in conflict,
the section of the Penal Code won ntrol in this
case since each Code controls upon its particular
theme But there is no necessary ntct between
the TWO sections and Section 1851 must be read i'll
the light Of Section 1922, and clearly means that
the wife must not testify against the husband ex-
cept in such criminal prosecutions for crimes COM
mitted against her as the Penal Code does not pro-
hibit her from testifying upon.
Bigamy may be a crime commit ed against the
innocent consort, but it is clearly not case of
criminal violence upon her, and | am fully per-
suaded that the wife is not competent to testify
against the husband upon prosecution for bigamY.
Now, however, we come to
THE MORE EMBARRASSING QUESTION,
Must this witness he considered the wife of the de-
PENDANT? 1t is true the complaint or deposition
upon which the defendant was arraigned charged
that she is his wife. This he Denies and upon that
issue goes into the examination or preliminary trial
The law presumes the defendant to be innocent,
and when he comes into Court and admits that he
is regularly married to Emma Hack, the law aids
him by presumiug that he had no other lawful wife
living 1t the time OF such marriage. 1t cannot be
presumed that the witness is defendants wife
merely because the complaint charges the fact and
the defendant denies it, and in reality that is the
very essence Of the issue in the case. suppose the
defendant had called this Witness believing he
could prove By her such a state OF facts as would
show that the alleged marriage was not valid and she
had refused to consent to examined and the prose-
cuion had nterposed objection TO her competency
ON the ground that she was defendants wife, 1t is
too clear for argument that the objection must
have been overiuled for if her testimony would
show that she was not his WIFE, it would acquit the
defendant and establish, beyond any question, her
own competency. Could she not, il 1t were true,
testify that she the defen dant before and
never pretended TO be his wife! And if she is COM
petent to answer question in the negative, how
can il be said thatshe may not answer in the atrma
tive! 1t is familiar rule thai when witness Is
produced, he may be examined upon his rotr
dire to point objection 10 his competency, but
this usually applies in where the question OF
competency is subordinate or preliminary ques.
ton and not where the very fact to be established
in the being established the witness thereby IS
proven incompetent.
this witness were asked the question, What
relation do you bear to the defendant and
the defense saw fit TO make no objection
upon the ground that it called for conclusion
from the witness OF an ultimate fact, and she an
svered "a am his wife" that would close her
mouth from giving further evidence, but the an
swer itself would stand and in the absence OF con-
Trajectory evidence would establish the fact oil
marrisge-,he very fact defendant does not want
established.
THE LAW IN SUCH CASES.
hold the law to be that any witness called to the
sIand may be fully examined as TO all matters
touching his her relations 70 either party to the
action, in order that the Court may determine
whether or not the witness is competent to TESTIFY In
the case on trial and that where the point IN issue
relates TO the relations of the parties it would not
be competent for the Court to presume that the re-
ation existed and exclude the evidence offered Tor
the very purpose of proving the fact The
reason Of the rule rnhibiting witnesses sustain-
ing certain relations to parties from testlns Is not