
    HAYES a. THE PEOPLE.
    
      Supreme Court, First District; General Term,
    
      May, 1862.
    Evidence of Marriage.—Bigamy.-—Presumptions.
    Under an. indictment for bigamy, strict proof of marriage is necessary. It cannot be established by inference, nor by cohabitation or admissions only.
    Marriage is a civil contract, and may be entered into in any manner which clearly evinces the intention of the parties.
    Writ of error to New York General Sessions.
    John J. Hayes, the plaintiff in error, was convicted of bigamy at the General Sessions of New York, September 18, 1861, for having married one Jane White, while his former wife, Sarah E. Blair, was living.
    A ceremonial marriage between Hayes and Sarah E. Blair was proved and admitted. As regards the second marriage, it appeared that Hayes first became acquainted with Jane, while she was a servant at the Pierrepont Hotel, Brooklyn: she' had never seen him before, but. he came and spoke to her by the door between 9 and 10, p. m., when he asked permission to call upon her ; that was Monday. On Wednesday, he took her out riding. She said, “ I don’t know where he took me—he stopped at several places—but they were closed.” They got back between twelve and half-past twelve at night. She left the Pierrepont Hotel, July 9th or 10th, and went to the Abbott House, Middletown Point, as servant, July 11th. On the 11th of August he came to Hey port, and took board where she worked ; while there, they became engaged to be married, but did not sleep together there. When she left the hotel in Brooklyn, she said, “ I told him I did not think I was worthy of him, that he was better in the world than I was, that I had nothing but what I made per month; I told him I had met with a misfortune. He asked me what it was. I told him I had had a child, and was confined in Bellevue Hospital. He said that it would make no difference, that he would give me his word of honor that it would never be cast up against me. as long as I was his wife when life lasted. I then gave consent to be his wife.”
    When she came to town to be married, he took her to Thompson-street, near Grand, and paid half a week’s rent; there she left some of her things, thence went “ to look further ” to a tenement-house in Elizabeth-street, saw the landlady, who refused to let the rooms because, as Jane said, Hayes had no references, and she “ don’t recollect any thing said about marriage certificate.” Then they went back to Thompson-street. She says she is positive she did not sleep there that night, September 12th, but at her mother’s. The next day, between three and four, p. m., came over to the room in Thompson-street, there saw Hayes, and was married to him in that apartment about seven, p. m., by a man whom Hayes represented to be a minister, and who was dressed like one. He had on a white neck-tie. She did not ask his name. That night she got a marriage certificate. Said she could not read or write. Defendant took the certificate. She swore that she did not know where it was. She did not think it was necessary to have a witness, thought the certificate was enough, but she could have requested her sister to be there, only he told her he wanted the marriage kept secret, as his mother had died in March and left him some property, which he would lose if his being married were made known.
    She was cross-examined, and stated among other things, as follows : I did not state when I first went to Thompson-street that I was Hayes’ wife. I did not stay with him all night at the Lafarge House, at Island City Hotel, or anywhere else until I was married. I don’t know that I told the woman in Elizabeth-street that I was his (Hayes’) wife; did not till I went there the second time. I did not swear before Justice Osborne that I never had a marriage certificate. There was “ no other ceremony performed except the one on the 13th of September. I had a marriage ring ; got it quite a while after the marriage ; no ring was used at the marriage.” She was not married to the man by whom she had the child ; the child was dead.
    There was proof that Hayes had spoken of, and represented her to be his wife on various occasions.
    
      J. W. C. Traphagen and James T. Brady, for plaintiff in error.
    I. To convict of bigamy, there must be proof of each of the alleged marriages as a marriage in fact. It cannot be established by admissions, cohabitation, or any thing less than satisfactory evidence that the marital relation was actually created. (3 Greenl. Ev., § 205.)
    II. Although in this State marriage is a civil contract, -and may exist without any formal solemnization, yet, consent of both parties is the essence of the contract. There is no contract unless the parties thereto assent, and they must assent to the same thing in the same sense. (Pars, on Cont., 399.)
    IH. The learned judge charged in this case, that if Hayes and Jane White agreed in the presence of the man represented to be a minister, to be man and wife, and afterwards lived together as such, that was a sufficient marriage to sustain an indictment for bigamy ; “ and it was of no consequence whether the man represented to be a minister was such or not.” This latter branch of the charge was erroneous. On the most favorable view of the case for the prosecution, Hayes debauched Jane White by means of a pretended marriage, when he never designed to marry her, and did not, in fact, consent to a marriage. Foi' this seduction, if such it wei-e, he cannot be punished, as the t2'ansaction lacks essential features to bring it within our statute against seduction.
    IY. It- seems quite obvious that there was no seduction in the case. The pr’oof discloses a clear case of a woman who had already and illicitly parted with her chastity, becoming a concubine.
    
      Samuel B. Garvin, for the People.
    The exceptions arise upon the chai-ge of the recorder, in which the court properly advised the jury;—1. That marriage is a civil contract. (1 Hill, 270; 4 Johns., 52 ; 8 Paige, 574.) 2. That it did not require the inteiwention of minister or magistrate to make it legal. (See S. C.) 3. It was of no consequence whether the person rep2’esenting himself to be a minister was such or not. If he so represented himself, the mai’riage was valid in law. - (State a. Rood, 12 Verm., 896.)
    
   By the Court.—Leonard, J.

Under an indictment for bigamy, strict proof of marriage is necessary. It cannot be established by inference, nor by cohabitation, or admission only. The defendant is never estopped from denying the fact in a criminal case. His conduct may, however, be so wicked as to exclude favorable presumptions in his behalf. In the present case, it was proven that the prisoner introduced to the complainant a person whom he represented to be a ministe2', and who conducted a marriage cere2nony between them as a minister, taking a small book from his pocket and reading the Episcopal form. This person was dressed to represent the character in which he served, and it was manifest that it was designed by the prisoner that the complainant should believe him to be an ordained minister of the Gospel. There was no proof, however, that he was in fact a clei'gyman, or authorized by law to certify a marriage for the purpose of registry. He asked the complainant if she would take the defendant for her husband, and she answered, Yes. The prisoner was asked if he would take the complainant as his wife, and he answered, Yes. And the person officiating pronounced them man and wife. Here was every element necessary to constitute the contract of marriage. It was followed by cohabitation. The jury believed it was a reality to the complainant, whatever the prisoner intended. He may have procured some person falsely to represent himself as a minister, with intent to deceive his victim, and to obtain the object of his lust without any marriage. Such a thing is possible. I see no reason, however, to,, presume that the prisoner committed another and different crime in order to acquit of the one with which he stands convicted here. Marriage, although the most solemn obligation, is a .civil contract, and may be entered into in any manner which clearly evinces the intention of the parties. It is altogether suitable that it should be celebrated in a manner to impress upon the parties and friends its sacred character. The law, as written in the statute, has wisely, I think, omitted to prescribe any form to be observed in entering into this contract. I think the charge of the recorder was correct. The judgment should be affirmed. 
      
       Present, Ingraham, P. J., Leonard and Rosekrans, JJ.
     