Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-01-13

in any sense offended by the conclusion arrived at
Sect on 1851 OF the Code OF Civil Procedure begins
as follows There are particular relations in
which is the policy OF the law to encourage con-
fidence and to preserve it nviolate therefore,
person cannot be examined as witness in the fol-
lowing cases: - And then it proceeds to enumerate
the relations Ct husband and wife, attorney and
Client clergyman and church member, physician
and patient, etc. l apprehend there is no doubt
that an attorney might be called to prove the rela
ton Of attorney and Client priest to prove the re-
ation OF deyotee and confessor, or o physician TO
prove his employment as such but it is plain that
none of them could testify to any facts learned in
the confidential capacity The reason OF the rule is so
well stated in Section 1851 torequ;re no comment
1t is TO encourage and protect confidence and norder
that this object be gained the fact OF the coniden
tial relation must be first established. The test-
mony Of this witness was directed exclusively to-
ward proving that she was the wife Of the defend
ant and not one word OF it was in the nature OF
revelations of facts communicated III marital conf
denee And again, taking the whole of her testi-
mony, and considering it alone, it does not suff-
GENTLY establish the fact Of marriage, but merely
constitutes certain important links in the chain of
evidence tending TO establish that fact From these
considerations it becomes clear to my mind that
this witness is competent and her testimony must
be considered for what it is worth.
1t may not be out OF place to here remark that
can discover no good reason why the mouth of eli her
husband or wife should be closed in any case where
the other is charged with the crime OF tigamy, and
to express the hope that an act amend the law in
this regard, which has, as am Informed, been intro
duced in the gisature now in session shall become
law.
No doubt Z is opinion would be more satisfactory
to counsel il it were more in the nature of cola
ton and discussion of the very many authorities
bearing upon the legal questions involved but the
press of other business is saeb as to permit me
merely to examine the authorities and give nay
illusions. 1t only remains for me to
BRIEFLY EXAMINE THE EVIDENCE
In the case and express my conclusion upon the
Of T,7Iia
fed that about August 1879, she ara the defendant
mutually agreed to marry that she vas at he
time widow, having infant child, and living
at the home OF the Defendants married sister wit
ness name beng Julia A Finn that defendant de-
sired the engagement to be kept secret from his
relatives, and on one occasion suggested that
they would sometime 90 out to Brighton and
be secretly married that soon after the engage
ment the defendant went to Antelope Station and
taught school for short time that whiie there be
wrote her three letters which are produced in
evidence. The defendant admits two OF the letters
to be his but Qualiiiedly denied the third.
| am fully persua cd, however, that he
wrote all OF them. In each of these letters he adj
dressed her Ny darling julia" They are all ten
der and alfectionate in tone. In one Of them he
subscribes himself, :" Yours, faithful, George
T." In another he concludes with, ' Aino, sum
stulta Ados Geo" And in the third ne says
Z" hope it won't be long before Ican keep YOU with
me all the time. Kiss little darling twice for
me Just as sweet as you can. lt is o'clock and
am four miles from home. Came that distance TO
write this letter will be in Sacramento next Sat
urday. Let me know where you Will be and viii
contrive to see you God bless you, my darling,
and keep you for me. With much love and many
kisses, I remain yours devotedly, G. E.
1t is true the last quotation is from the letter
which defendant denies writing but all three OF the
letters are written upon precisely the brand of
paper, and are undoubtedly III handwriting.
These letters dated respectively upon the 18TH
2Sd and 10Th Of September 1879, and shortly after
this time the defendants sister informed by
Mrs. Finn of the engagement.
THE BRIGHTON MARRIAGE.
Mrs. Fin or Landes, further testified that upon
a Sunday, either in october or November 1S79-she
cannoU fix the date, but thinks it was on the 9Th
day of one of those months-she and defendant met
at Fast Park, near Sacramento city, and went to
her mothers residence short distance further from
the city that he was on horseback and she on
foot =; that he returned to the city on his horse,
buggy that he arrived Just at twilight took
her and her infant into the buggy and
started back, but instead of driving directly to
the city lie drove into country upon what she sup
posed was the Brighton road; that after driving
some distance they halted in front of house, and
he said, There is Justice Fosters house. let us GO
in and get married - that she assented, and he
hitched the horse and they wentin, and therefound
man and woman of middle age and two younger
men that she and defendant stood up side by side,
held each other by the hand, and the gentleman
whom she supposed was the Justice asked each of
them the ordinary question propounded in civil
marriage In short, that they went through brief
marriage ceremony, and she honestly believed they
were thereby lawfully married that they returned
to the city, she going to her home at Mr.. McDon-
aids house, ard he going somewhere else That
shortly after this defendantcame to MIR MeDonad's
house to sleep, and after all had retired
and the house was quiet, he left his room
and came to hers, when the marriage contract
was coHsummated; that he enjOiued secrecy
upon her concerning the marriage that cohabta-
ton occurred two or three times in McDOuad's
house that she left there and went to live on J
street, where the defendant came frequently to see
her in the daytime and early evening, and awaited
himself OF his marital rights, aud upon one OCCASION
when her sister, who lived with her, was away he
remained all night, sharing her bed that she after
wards went to live on street, in some rooms
rented in Mr.. Gman's house, where defendant
continued his visits and upon one or two occasions
remained all night; that he insisted upon kee ing
the age secret, but thai ne knew her mother
and sisters knew of it, and sometimes in their
presence had called her his wife, and sometimes adj
dressed her younger sisters sister," that after
he married Miss Hack and went to Cache Creek, in
Yolo county. SHE received from him number Of
letters and that i'll DC ober, 1882 there bora to
her the result OF said marriage between witness
and defendant male child. The foregoing Is a
brief summary OF her testimony, and the greater
part Of her story is
CoRRoB0RATED BY OTHER WITNESSES.
But in some of the most essential points the corrob.
Grafton is not so clear as it might be. Neither of
the four persons witnessing the marriage ceremony
have been found, and the marriage certificate which
tSSti1itS uelenuant gave ner Is signed " q.
Foster there being no person of that name known
and there is some doubt as to the handwriting OF
the certificate Ii the prosecution could have pro-
duced one or more of the persons alleged to have
been present at the pretended marriage, the guilt of
the defendant would be established most clearly;
but none Of those persons have been produced and
their absence to some extent casts cloud OF uoubt
over the testimony of the principal witness. Their
Absence however, by means DESTROYS her evil
dence for if what she says be true it may be that
| those witnesses have concealed their knowledge
from fear OF being 10 some manner implicated in
criminal charge. The evidence does not show that
any OF the persons present at the pretended
| marriage ceremony, if it did occur, are guilty
Of any crime, and it is to be hoped for the
sake OF truth and justice that, if there be any such
witnesses in existence, they will make the fact
known, as it could not in any way hurt them to tell
the truth. Another circumstance throws some
doubt over the testimony OF this witness She can
not fix the date Of the alleged marriage accurately
| as would be expected, for we do know that crdi-
narily person. more particularly a woman-re-
members with accuracy the date Of marriage But,
again, this is not necessarily indicative Of ssehood
on her part in fact Ii would seem that il her story
we fabricated she would have taken care to make
it complete However, the strongest confederation
Of her story to my mind, comes from the defendant
himself, in the numerous letters written from
Cache Creek and Woodland, and beginning with the
date of August Q, 1850. The defendant denies writ
ing them, but it would require than the word
of any interested witness TO convince me upon that
point The simple fact is they are his handwriting,
and | do not believe it possible that any other
person could have written them. / will not quote
from their contents, but merely mark that them
he clearly and pointedly admits that he is married
to this witness and denies his other marriage; he
calls her his wife, expresses the hope that he will
soon be able to have her with him constantly, and
subscribes himself as her husband.
1t is barely possible that the defendant might, by
telling the plain Truth, have explained this whole
matter consistent with his excupation from legal
crime, but this he has not done; in fact, am
PEELED to disregard all his testimony; and the evil
nffar bt and anIs ts,h
habits, mode OF living and general whereabouts is
not at all inconsistent with the substantial truth of
the evidence for the prosecution. | am forced to
the conclusion that there is sufficient ground for
holding the defendant to answer, and requiring that
this matter be investigated fully and passed by
jury. a proper order viii be entered and the de-
PENDANT held to answer to the charge of bigamy,
with bail fixed at the OF fifteen hundred dollars
S. c. benson, Judge of Superior Court.
TRANSFERS OF REAL ESTATE.