
    *Bird v. The Commonwealth.
    November Term, 1871,
    Richmond.
    1. Bigamy — Foreign Marriage — Proof of. — On a prosecution for bigamy, where a marriage is alleged to have taken place in a foreign country or State, proof must be made of a valid marriage according to the law of that country or State; but no particular kind of evidence is essential to establish the fact, except that it cannot be proved by reputation and cohabitation.
    2. Same — Same—Same.—When a witness testifies to a marriage in a foreign State, solemnized in the manner usual and customary in such State, by a person duly authorized to celebrate the rites of marriage, and the parties afterwards lived together as man and wife, this is as satisfactory evidence of a valid marriage as can be expected or desired; and in such case it is not necessary to prove the laws of such State, or to offer further evidence of a compliance with its provisions.
    3. Evidence — Experts—Who Are. — All persons who practice a business or profession which requires them to possess a certain knowledge of the matter in hand, are experts, so far as expertness is required. 8 Man. Gran. & Scott. 812.
    4. Bigamy — Case at Bar. — M proves that he is a Catholic priest and pastor of a church in Washington D. C., and authorized to celebrate the rites of marriage; that by virtue of a license issued by the proper officer in the usual form, he married B and M, at his residence in said city, in the presence of two persons; and in accordance with the rules and customs of the Catholic Church and the laws of the District of Columbia. And it was proved that B and M afterwards lived together as husband and wife. On a prosecution of B for bigamy, this is sufficient evidence of the marriage of B and M.
    5, Act oí Congress — Judicial Notice. — The act of Congress continues the laws of Maryland in force in that part of the District of Columbia ceded by Maryland. The Maryland law thereby became the law of Congress in said District, and is to be taken notice of by State courts, without proof.
    At the July term, 1871, of the Corporation court of the city of Alexandria, Thomas H. Bird was indicted for bigamy; for this, that on the 16th of January 1868, *in the city of Washington, in the District of Columbia, he married Mary Broden; and afterwards, she being still living, on the 1st of March 1871, in the city of Alexandria, he married Henrietta God-win. At the same term of the court he was tried and found guilty, and the jury fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him accordingly.
    On the trial the prisoner’s counsel asked for several instructions to the jury; which the court refused to give; and gave other instructions; and the prisoner excepted. The bill of exceptions sets out the facts proved, and the instructions asked and refused, and those given. From this bill of exceptions it appeared that it was proved by the Rev. P. P. McCarthy, that in the month of January 1868, the prisoner was married by him to Mary Broden, at his residence in the city of Washington, in the District of Columbia. That said McCarthy was a priest of the Roman Catholic Church, and had been for five years pastor of the church of the Immaculate Conception, in the city of Washington; and was duly authorized by the canons of his church and the laws of the District of Columbia, to perform the ceremony of marriage; that the prisoner carried to him the license issued by the clerk of the Supreme court of the District of Columbia, authorizing the marriage of the prisoner to Mary Broden; that said license was issued by the proper officer, and was in the usual form of marriage licenses used in the District of Columbia at that time; and that under the authority conferred by that license, and in the presence of Mr. and Mrs. Cooke, two witnesses of full age, he, the said McCarthy, performed the ceremony of the marriage of the prisoner and Mary Broden; that said marriage was contracted in accordance with the rules and customs of the Catholic Church, and the laws of the District of Columbia. The license was on file among *the archives of his church, where by the rules of his church it was required to be kept.
    On cross-examination the witness stated that he first saw Mary Broden a few days before the marriage; and that she first spoke to him concerning the marriage; and that he had a conversation with her in regard to it some days before it took place. The counsel for the prisoner then asked what that conversation was. To this question the attorney for the Commonwealth objected. The counsel for the prisoner then stated, that the object of the question was, by following it up by other questions, to show that Mary Broden was a common prostitute, and that the marriage between her and the prisoner was the result of a combination and conspiracy between herself and one Cooke and others, by which it was performed against the will of the prisoner, and under duress imposed upon him. But the court excluded the question; and the prisoner excepted.
    It was proved that the prisoner and Mary Broden lived together for some years before their marriage; during which time she passed by the name of Mrs. Bird: and after the marriage they lived together as husband and wife. And it was further proved, that Mary Broden was still living, and that the prisoner was legally married to Henrietta Godwin, in the city of Alexandria, in March 1871: and this last marriage was admitted on the trial.
    The evidence being closed, the prisoner moved the court to give the following instructions, viz:
    1st. In order to convict the prisoner, the jury must believe, from the evidence, that two marriages have been contracted by him, according to all the forms of law of the places where they have been celebrated; and if either of them was performed outside the State of Virginia, in another State or country, then the law of such State or country must be shown to the satisfaction *of the jury, and that all the requirements of that law have been complied with in such marriage.
    2d. The jury are judges of the law as applicable to the case, in all matters, except wherein they are instructed by the court as to what the law may be.
    3d. The law of the country or State where the first marriage is shown to have taken place, must be proved to the satisfaction of the jury, by competent testimony.
    4th. The mere assertion of a minister of the gospel, that a marriage license was issued according to the law of the country where such marriage was celebrated, is not sufficient evidence of what the law may be.
    The court, because the evidence of the legality of the marriage in the District of Columbia was not objected to when it was introduced; and because the acts of Congress of a public nature applicable to said District, are matters of judicial cognizance, and are not required to be proved as matters of fact to. the jury, and for other reasons, refused to give these instructions; and instructed the jury as follows :
    1st. If the jury believe from the evidence, beyond reasonable doubt, that the prisoner was married in the city of Washington, D. C., to Mary Broden, according to the law prevailing in said city at the time of said marriage; and that afterwards, and during the life of the said Mary Broden, and without having been lawfully divorced from the said Mary Broden, he was, in the city of Alexandria, State of Virginia, married to one Henrietta Godwin, according to the law of the State of Virginia, that then they will find the prisoner guilty.
    2d. If the jury should not find the facts as stated in the foregoing instruction, they will find the prisoner not guilty.
    The jury then retired to consult upon their verdict, and after a short time returned into court — the prisoner being present — and enquired of the court whether or not they could, upon the evidence adduced at the trial, find *that the first marriage was celebrated according to the laws of the District of Columbia. The court informed them that they could. Whereupon, they again retired to their room, and in a short time returned into court with their verdict.
    Upon the application of the prisoner, a writ of error to the judgment was awarded by a judge of this court.
    There was no counsel for the prisoner.
    The Attorney-General, for the Commonwealth.
    
      
      Bigamy — Proof of Marriage. — In State of W. Va. v. Goodrich, 14 W. Va. 839, the court said : “The evidence, on which the jury in this case based, their verdict of guilty, was sufficient to justify such verdict. It is true, the first marriage charged in the indictment was proved by the minister, who officiated at the marriage; and the second marriage charged in the indictment was only proved by the distinct admission of the prisoner ; and that the authorities elsewhere are conflicting on the question. whether such proof is sufficient in an indictment for bigamy, or whether it is even admissible;. but it is settled in Virginia, and in this State, that such evidence is admissible in such a case, and sufficient to justify a conviction. See Warner v. Com., 2 Va. Cas. 95 ; Oneale’s Case, 17 Gratt. 582 ; Bird’s Case, 21 Gratt. 800.”
      Civil Suits-Proof of Marriage. — That admissions and reputation are sufficient proof of marriage in civil cases, see womack v. Tankersley, 78 Va. 243, when the court said: “The admissions, however, must not be casual, but deliberate. Such admissions of a prior marriage in another State, are sufficient eviden ce of such marriage, without proving the marriage to have taken.place agreeably to the laws of that State. Such admissions and acts are competent evidence not only of the fact of the marriage, but also of its validity, under the ‘lex loci contractus.’ Rex v.-of Brampton, 10 Bast R. 282; Hemmings v. Smith, 4 Douglas R. 33; 3d Waterman’s Archbold, 613; and Bird’s Case, 21 Gratt. 800.”
      See in accord, Purcell v. Purcell, 4 H. & M. 507; Hitchcox v. Hitchcox, 2 W. Va. 435; Lile’s Notes to 1 Min. Inst. 154 et sea.
      
    
    
      
      Evidence — Experts—Who Are. — In McKelvey v. C. & O. Ry. Co., 35 W. Va. 502, 14 S. E. Rep. 262, the third head-note of the principal case is approved but distinguished upon the facts, the court saying: “Refer-énce is made to Bird’s Case, 21 Gratt. 800, for the proposition that ‘all persons who practice a business or profession which requires them to possess a certain knowledge of the matter in hand are experts, so far as expertness is required.’ This is an acceptable statement, but this witness does not fall within it. He has no knowledge derived from study or experience in the construction or repair of locomotives.”
      See Taylor v. B., etc., Co., 33 W. Va. 39, 10 S. E. Rep. 29.
      Jurisdiction of Corporation Courts. — See the principal case cited in foot-note to Boswell v. Com., 20 Gratt. 860.
    
   STAPU3SS, J.,

delivered the opinion of the court.

This case comes before us upon a writ of error to the judgment of the Corporation court for the city of Alexandria. The prisoner was indicted in that court for bigamy. On the trial he offered to prove that his first wife was a common prostitute; that his marriage with her was the result of a conspiracy between herself and one Cooke and others, by which the ceremony was performed against his will and under duress imposed upon him. To the introduction of this evidence the attorney for the Commonwealth objected: the objection was sustained; and the prisoner excepted.

The evidence being closed, the prisoner asked for instructions, which the court refused ; and in lieu thereof gave certain other instructions. It does not appear, however, that any exception was taken to this ruling' of the court. The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years. He made no motion for a new trial; but the record states that the jury having-returned into court with their verdict, the prisoner thereupon tendered his bill of exceptions, and prayed that the same might be signed, sealed and enrolled, which was accordingly done.

In his petition, the counsel for the prisoner does not suggest any error in the rejection of the evidence offered by him, and made the ground of the first bill of exceptions. *His assignment of errors relates exclusivelj' to the instructions asked for by him and refused by the court; and to the competency of the evidence adduced . by the Commonwealth to establish the fact and the validity of the first marriage. As the prisoner excepted neither to the instructions nor to the evidence, it is difficult to perceive how these objections, even if. well founded, can avail him in this court. The last bill of exceptions may, however, be regarded as raising the question of the sufficiency of the evidence to warrant the finding of the jury ; and in this view it may be proper, in tenderness to the prisoner, to consider the grounds suggested by him for reversing the judgment of the cpurt below.

The second marriage was fully admitted on the trial; and no question arises in regard to that. The first marriage was alleged to have taken place in the city of Washington, in the District of Columbia. It was proved that in January 1868, the prisoner was married in that city to Mary Broden (his first wife), at the residence of the Rev. P. E. McCarthy, a Roman Catholic priest, duly authorized by the canons of his Church and the laws of the District of Columbia, to celebrate the rites of . marriage; that the prisoner carried to the said McCarthy a license issued by the proper officer of said city, authorizing the marriage, which was in the usual form used in the District; that the said McCarthy, in the presence of two witnesses, performed the marriage ceremony; that said ceremony was conducted in accordance with the rules and customs of the Catholic Church and the laws of the District of Columbia; that the parties since that period have lived together as man and wife.

It is insisted that this evidence did not warrant a conviction; that it was incumbent upon the Commonwealth to prove the law in force in the District of Columbia regulating marriages; that the ceremony was performed in conformity with its provisions; and such proof of the law must have been derived from some person of competent *skill and knowledge, as an expert, or from duly authenticated documentary evidence.

It is true that in prosecutions for bigamy, where a marriage is alleged to have taken place in a foreign State or country, the courts always require proof of a valid marriage according to the laws of that .State or country. But they have never held that any particular kind of evidence was essential to establish this fact. The extent to which thej have gone is, that in criminal prosecutions and certain civil actions, a valid marriage cannot be proved by reputation and cohabitation. In England it is the settled rule, that a foreign marriage may be proved by any competent witness present at the ceremony, with further proof of such circumstances as lead to the conclusion that the marriage is valid according to the laws of the country in which it is celebrated. In Rex v. Inh. of Brampton, 10 East’s R. 282, it appeared that the marriage was contracted in St. Domingo. The parties b.eing on that island and wishing to be married, went to a place of worship in that country and were married by a person professing to be a priest; and after such marriage they cohabited as man and wife for eleven years. This was all the evidence adduced. Eord Ellenborough said it was a good marriage by the law of England; but supposing the law of England not' to have been carried to St. .Domingo, every presumption must be made in favor of its validity according to the laws of the country where it was celebrated.

It is true that this was not a criminal prosecution; but the natu're of the proceeding required proof of a valid marriage in fact, as distinguished from proof by reputation and cohabitation. In all such cases the rule is the same in respect to the evidence to be adduced, whether it be a criminal or civil proceeding. See also Hemmings v. Smith, 4 Doug. R. 33; 3 Waterman’s Archbold 613.

, In the United States there are numerous cases to the *same effect; but it is not necessary to refer to more than two or three of these. In the State v. Kean, 10 New Hamp. R. 347, it was decided that the testimony of a witness that he was present at the marriage of the accused in the State of ’ Maine, and that the service was performed by the settled minister of the place, who was in the habit of officiating in such services in other instances, is sufficient evidence of a valid marriage, without further proof of the laws of the State of Maine, or that the person officiating was duly authorized to administer the rites of marriage. See also State v. Rood, 12 Verm. R. 396.

In Warner’s case, 2 Va. Cas. 95, this precise question did not arise. But White, Judge, in the course of his very elaborate opinion, in which all the judges concurred, said that where the first marriage was established out of the State by a person who, from all the circumstances of the case, must reasonably be presumed to have filled a character authorizing him to do so, and who was recognized as the proper officer by the accused himself and the company present, and further proof, that after the ceremony, the parties lived together publicly as man and wife, such evidence, if not in-pugned by other testimony, is proper, corn-petent and sufficient to convict the accused.

In Oneale’s case, 17 Gratt. 582, it was decided, that the prisoner’s admissions, deliberately made, of a prior marriage in another State, are sufficient evidence of such marriage, without proving it to have been celebrated according to the law of such State. And yet, such admission involves not only the fact of the marriage, but its validity in point of law.

Although the testimony of a witness present at the marriage may not be as conclusive or satisfactory as the confession of the party, there is no solid reason for rejecting it as incompetent. There is no technical rule forbidding the reception of such evidence. When a witness testifies to a marriage in a foreign State, solemnized *in the mánner usual and customary in such State, by a person duly authorized to celebrate the rites of marriage, and the parties afterwards lived together as man and wife, this is as satisfactory evidence of a valid marriage as could be expected or desired, and in such case it is not necessary to prove the laws of such State, or to offer further evidence of a' compliance with its provisions.

This view renders it unnecessary to notice the second assignment of error, that a priest or minister is not competent to prove the. law of another State or country, upon .the subject of marriage. It might be easily shown that he is competent for that purpose. And this upon the principle recognized in Vander Donckt v. Thelluson, 8 Man. Gran, and Scott 812, in which it was held, that all persons who practice a business or profession which requires them to possess a certain knowledge pf the matter in hand, are experts, so far as expertness is required. See also Sussex Peerage Case, 11 Clark and Pin. R. 55.

Thus far the laws of the District of Columbia have been treated as the laws of a sister State, or foreign country. Is it proper so to consider them? By the first section of the act of Congress of February 17th, 1801, it was provided that the laws of Maryland should continue in force in that part of the district ceded by it; and .with them of course was continued the law in respect to marriage. By this enactment and recognition these laws became, to all intents and purposes, laws of the United States; of which the State courts will take judicial notice. The judge of the Corporation court was, therefore, right in holding that the acts of Congress of a public nature applicable to the District of Columbia are matters of judicial cognizance, and are not required to be proved as facts.

For these reasons the judgment of the Corporation court must be affirmed.

Judgment affirmed.  