Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-07-15
NO LAW TO FIT THE CASE.
Judge Mcfarland Discharges Aus'ih'
Avery and McGinniss.


were present while it was being rendered,
and Maggie interrupted the Judge during
its reading, jumping up and commencing
an expostulation with Now, Judge, but
was ordered TO keep silent, and did so.
Subsequently, after the adjournment oil
Court. her sister used her tongue very freely
to the Judge, District Attorney, County
Clerk and others. Following is the decl-
sion in full
Superior Court, Sacramento county, Cali
fornia. Petition of 5. W. Austin ct ais, on
habeas corpus.
Petitioner Austin is held on commit
ment charging him with the crime OF false
personation. i,
In passing on the petition | assume all
the doubtful facts to be determined against
the petitioner, and in favor OF the validity
of the commitment. The material facts
are as follows:
On the thirty-frst day of October, 1885,
the petitioner Avery (who is charged with
conspiracy to effect the said false persona
tom, requested the said Austin to procure
a marriage license for the marriage OF said
Avery with one Margaret J. Hill. The
name by which Avery was generally known
was Eugene e. Avery. He claimed, how
| ever, that his former name was Hueston r..
Avery, and requested Austin 10 get the Ii
cense in the name of II. l.. Avery, so that
| his father, and his friends at college, might
not know of his marriage. There is some
evidence that the said Margaret j. Hill
consented to this, but it IS not necessary to
| find as to that fact. Austin went TO the
residence of the County Clerk about s
o'clock p. NJ. in company with the other
petitioner, MeGinniss also charged with
| No.
| McGinniss to introduce Austin as Avery.
This is denied by both McGinniss and Aus
tin: but, for the purposes of this hearing,
assume that he was so introduced Austin
went with the Clerk to the Clerks office at
the Courthouse, where McGinniss also
afterwards came. The Clerk there had
some conversation with Austin and Nc
Ginniss about the parties to the proposed
marriage -McGinniss doing most of the
talking, and the Clerk supposing Austin to
be Avery The Clerk then prepared an
affidavit which Austin signed, and the
Clerk attached to it the usual jurat. Aus
tin says that he did not understand it to
be an affidavit; that he was not
sworn to it; and that he supposed
it was some paper which he had the
right to sign for Avery-he being young
man with no experience in such business.
l assume, however, that he did understand
| it, and was sworn to it. He gave to the
clerk the name II. G. Avery" instead of
" II. Il. Avery" by mistake, as he claims.
The clerk then asked him what III"
stood for and he replied Hiram y
probably mistake for Hueston." There
were clerical mistakes made in the affida-
Wit, and, leaving out the headings. it is as
follows:
Hiram z. Avery being first duly sworn
deposes and says, that he knows the above
named Margaret J. Hill, that she is ma
tive of Ireland, that she is of the age of %
years, and a resident of Sacramento CITY,
county of Sacramento, State of California ;
and the said Hiram c. Avery being fur
ther sworn. deposes and says, that his
name is Margaret j. Hill, that he is ma
tive-of California, that he is of the age of
2S years, and resident of San Francisco
county of San Francisco, State of Califor-
MIA. Fl. G. AVERY.
Witness-John C. McGinniss.'
A license was then issued for the
marriage of Avery and Margaret Hill
Austin did no other act assuming or pur-
porting TO represent or personate Avery
The license was given Avery, who gave it
to the said Hill on the same evening, offer
ing then to marry her. She objected be-
cause the license did not state Avery's first
name correctly. After some negotiation it
was agreed that the said Avery and Hill,
should go to Woodland, Yolo county, the
next Monday, procure another license and
be married there. They did go there on
said Monday, and another license was pro-
cured but the said Margaret Hill, through
suspicion, or some other cause, refused to
be married.
Upon the foregoing facts the question is,
was Austin guilty of the crime known to
to the law as false personation
Nothing is criBlnally false personation
unless it be an act which the law declares
to be such. The only acts in rela-
ton to the subject of marriage which
the law declares to be false perscnation
are those mentioned in Section 52o of the
Penal Code, which is headed Marrying
under false pretenseS.' and is as follows ::
% Section 52S. Every person who falsely
personates another, and in such assumed
character marries, or pretends to marry, or
to sustain the marriage relation towards
another, with or without the connivance Of
such other, is guilty of felony"
OF course this section does not apply to
Austin. He did not marry or pretend to
marry anyone under an assumed character.
But it is contended that Austin is liable
| to criminal charge under the second SUBJ
division of Section so. That section is
headed Falsely personating another in
| other cases" The section, down to the end
of the said second subdivision, is as fol-
lows Every person who falsely person
ates another, and in such assumed charac-
ter either, ~ becomes bail or security for
any party in any proceeding whatever, be-
| fore anv Court or officer authorized to
take such bail or security or (2) veri-
flies, publishes, acknowledges or proves,
in the name of another, any written
instrument, with intent that the same may
be recorded, delivered and used as true is
punishable by Imprisonment, etc.
But this language refers TO " other cases
than false personauon in the matter of
marriage, and obviously and clearly IS in
tended to include only those written instru-
ments which are entitled to be recorded,
and which, when recorded, constitute a
public statement and history of property
and other rights The words are in the
OBSERVATION-DISCLOSURES, delivered and used.
The instrument must have been made
" with intent that the saIue may be re-
corded" The words used liz the first part
of the subdivision express things that must
be done in the execution OF the various
kinds of recordable instruments. But the
affidavit in question IS not such an instru-
ment in any sense whatever. 1t not only
! Is Ilpl Entitled 10 NC ItCbIutu, Out IL Is IUt
even required to he fled, or in any
manner preserved. The Clerk may ex-
anime parties and witnesses as to the
ages, etc, of persons applying for marriage
licenses, and may receive affidavits ii
persons choose 10 make them. All this,
however, is merely for the satisfaction of
the Clerk. If be receives an affidavit he
may keep..it or destroy it, as he pleases. 1t
can hardly be grayely argued that such an
instrument is of tie kind mentioned in the
said Subdivision of Section 529.
Therefore, no matter how strongly the
evidence may establish the facts claimed
BY the prosecution. those facts do not
constitute the public otfense charged
against Austin, and there was not probable
cause for the commitment. Upon trial
the Court would be bound to instruct the
Jury to acquit. And, of course, the
charges of conspiracy against the other
petitioners falls with that against Austin
Whatever immortality, or misconduc
any of these petitioners may baye commit
ted, the Court cannot make law to fit theil
cases. New crimes can be created by th'
Legislature alone.
Let the petitioners be discharged.
T. =. MCFARLAND, Superior Judge.
OLIVE BRANCH SocIETY.-The following
officers of the Olive Branch Ladies Societ.
were duly installed last Tuesday evening
Mrs. DR.. Magill acting as installing officer
President. Mrs. Z. Morehouse Vlce-PreSi