
    Decided March 21, 1898;
    rehearing denied.
    STATE v. ISENHART.
    [52 Pac. 569.]
    1. Order op Proof — Discretion of Court.— Under Hill’s Ann. Laws, § 830, providing that “the order of proof shall be regulated by the sound discretion of the court,” such discretion extends to the reopening of the trial of a case, to allow the introduction of additional evidence, where no surprise is occasioned thereby.
    2. Certificate of Marriage as Evidence. — A certificate of marriage, as prescribed by Hill’s Ann. Laws, § 2857, when properly identified, is admissible as part the res gestee, in connection with proof of the identity of the parties, to establish the fact of marriage.
    3. Idem.— Where it was insisted that the production of a license was essential to the establishment of an alleged marriage, there was no error in instructing that the marriage certificate, which was produced, was “ prima facie evidence of a legal marriage.”
    From Columbia: Thomas A. McBride, Judge.
    John W. Isenhart was indicted, tried, and convicted of having committed the crime of adultery with one Mary E. Severn, the wife of Walter Severn. To prove the fact of marriage between Walter and Mary E. Severn, the complaining husband was called as a witness for the state, and, among' other things, testified, in substance, that Mary E. Severn was his wife; that her name before marriage was Mary E. Ewing; that they were married at the St. Charles Hotel, in the City of Portland, Oregon, by Mr. James Summers, on the twenty-eighth day of September, 1891, and that they afterwards lived together as husband and wife, and were never divorced. During the course of his examination, as further proof of the marriage, the- state offered in evidence a marriage certificate, of which the following is a copy: “ State of Oregon, County of Multnomah, ss: This is to certify that the undersigned, a justice of the peace, North Portland Precinct, by authority of a license bearing date of the twenty-eighth day of September, A. D. 1891, and issued by the County Clerk of the County of Columbia, did on the twenty-eighth day of September, A. D. 1891, at the St. Charles Hotel, in the county and state aforesaid, join in lawful wedlock Mary E. Ewing, of the County of Columbia, and State of Oregon, and Walter Severn, of the County of Columbia, and State of Oregon, with their mutual assent, in the presence of A. Nelson and Esther Foard, witnesses. Witness my hand. [Signed] James Summers, Justice of the Peace.” The court refused to permit its introduction, and, after some other witnesses had given evidence, the state rested, whereupon the defendant moved for a dismissal, upon the ground that the proof was insufficient to show the fact of marriage between the complaining witness and the said Mary E. Severn. After the argument upon the motion had continued for a time, the district attorney asked leave of the court to recall Walter Severn for further examination, which the court granted. The witness then further testified that prior to his marriage with Mary E. Severn he procured a license at St. Helens, Columbia County, Oregon, from E. E. Quick, and that the ceremony was performed by Mr. James Summers, a justice of the peace of North Portland Precinct, whose signature to the marriage certificate he identified. Thereupon the certificate was again offered, and was admitted over the objection of the defendant. In submitting the cause the court instructed the jury, among other things, as follows: “ A legal marriage in this state is constituted by a license duly issued in the proper county,— the county in which the family resides,— and a marriage ceremony performed in accordance with that. And I further instruct you that the certificate that has been presented here, if you believe the fact that it was signed by the proper officer who purports to sign it, is prima jade evidence of a legal marriage. You will be permitted to take the certificate with you into the jury room.”
    Affirmed.
    For. appellant there was a brief over the name of Stott, Boise & Stout, with an oral argument by Mr. Raleigh Stott.
    
    For the State there was a brief over the names of T. J. Cleeton, district attorney, and Harrison Allen, with an oral argument by Cicero M. Idle-man, attorney-general.
   Mr. Justice Wolverton,

after making the foregoing statement, delivered the opinion of the court.

The objection first made is that the court abused its discretion in reopening the cause after the state had rested, and in permitting the introduction of further evidence upon a vital point. The statute prescribes that “the order of proof shall be regulated by the sound discretion of the court”: Hill’s Ann. Laws, § 830. This discretion extends to the reopening of a case in either civil or criminal trials at the request of a party, for the purpose of allowing the introduction of additional evidence: 1 Thompson on Trials, § 348; 1 Bishop on Criminal Procedure, § 966; State v. Porter, 26 Mo. 201. The defendant was not taken by surprise, nor did the further evidence introduced by the state operate as a fraud upon his rights, as he could meet the case made as well upon the reopening as he could have done if fully made in the first instance; and the procedure adopted was undoubtedly within the exercise of a sound discretion.

It is next objected that the marriage certificate was not admissible to establish the fact of marriage. The certificate is in every particular . such a one as the statute prescribes shall be given by the person solemnizing the marriage to each of the parties, if they should require it: Hill’s Ann. Laws, § 2857. And while it is not by direct act constituted evidence of the fact, yet we think, when taken in connection with direct proof fixing the identity of the parties, and tending to show that a marriage had been solemnized by a person competent to officiate, and given at the marriage, that it is, when properly identified, admissible as part of the res gestse: 1 Bishop on Marriage, Divorce and Separation, § 1006; Bradner on Evidence 260; State v. Abbey, 29 Vt. 60.

It is further contended that the court erred in instructing the jury that the marriage certificate was prima facie evidence of a legal marriage. The instruction goes no further than to say that the certificate is prima facie evidence that a license had been duly issued, and that a marriage ceremony had taken place in pursuance of such license, which was styled a legal marriage, and, therefore, that the certificate was prima facie evidence of such a marriage. It does not appear to have been intended as an instruction that the certificate established prima facie a marriage between competent parties mutually assenting, and otherwise lawful in all things that go to make up a valid marriage under the statute, but was given in view of the fact that no license was offered at tíre trial, it being insisted that the production of such license was essential to the establishment of the marriage relation. Other testimony was submitted, as we have seen, tending to prove the fact of marriage, the competency of the parties, and their identity; and this, we presume, was properly submitted to the jury, along with the certificate, for their consideration. The instruction was probably well understood, and there was no error in giving it. The fact that the name Mary E. Ewing appears as Mary A. Ewing in the certificate was susceptible of explanation, and it was competent to otherwise establish her identity.

Affirmed.  