
    Ewell vs. The State.
    The relationship and pedigree of parties may be proved by reputation on trial of an indictment for incest.
    A venue must be proved in criminal cases, and if a bill of exceptions does not show the place or county in which the offence was committed, a new trial will be granted.
    The grand jurors in the circuit court of Bedford county found the following indictment against the plaintiff in error: “The grand jurors for the State of Tennessee, elected, empannelled, sworn and charged to enquire for the body of the county aforesaid, upon their oath aforesaid, present, that Dabney Ewell, late of the county aforesaid, physician, on the first day of October, in the year of our Lord eighteen hundred and thirty-one, with force and arms, in the county aforesaid, in and upon one Sarah Ewell, then and there being the daughter of one Pleasant Ewell, who was then and there the brother of said Dab-ney Ewell, feloniously did make an assault, and her, the said Sarah Ewell, then and there feloniously and incestuously did carnally know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” To this indictment the defendant pleaded not guilty. The indictment was found on the 5th day of June, 1832, and charges the offence to have been committed on the 5th day of October, 1831. The penal code of this State passed in 1829, went into operation on the first day of January, 1831, by virtue of the governor’s proclamation.
    The bill of exceptions in this case is voluminous, and only such parts of it will be stated as were adverted to by the court in the opinions delivered.
    The bill of exceptions shows, that on the trial it was proved that defendant was reputed to be the brother of Pleasant Ewell, and that Sarah Ewell was reputed to be the daughter of Pleasant Ewell. There is no proof of an actual marriage between Pleasant Ewell and Sarah’s mother; and no other proof of relationship but such as general reputation furnishes. The proof upon the of-fence charged is conflicting. There is ■ no direct proof of any copulation between the parties, but circumstances are detailed by the witnesses tending to establish the fact. There is much testimony on both sides. The court, in the trial of the cause, permitted evidence of circumstances and acts tending to establish an incestuous intercourse between the parties previous to the first day of January, 1831, and subsequent to the 5th June, 1832, to be given in evidence. No objection was made to the introduction of this testimony by the defendant, and no exception taken. There is no proof in the bill of exceptions that the offence was committed in Bedford county; nor are there any objects such as creeks, roads, mountains or rivers spoken of, which are situate in Bedford county. In fact, there is not one word of Bedford county in the bill of exceptions. The bill of exceptions concludes, “and this was all the evidence.”
    The court charged the jury, “that to constitute this of-fence, two things were necessary. First, That the parties should be related within the degrees prohibited by law. Second, That they should have had carnal knowledge of each other. He stated, that cohabitation by a man' with the daughter of his brother, was incestuous, they being within the degrees prohibited. That proof of this relationship could be made by reputation, and that proof of actual marriage was 'not necessary. He also stated, that it was not necessary, in order to' constitute this offence, that an emission should take place, but that a mere contact of the parts, a mere penetration, was sufficient carnal knowledge. That this fact could be proved as well by circumstantial or presumptive evidence as any other. That they had all the evidence before them, and it was their duty to examine it.” The jury found the defendant guilty as charged.
    
      A motion was made for a new trial, and overruled by , , . , , , , the court; and judgment passed upon the prisoner on the finding of the jury. The defendant excepted to the opinion of the court overruling the motion for a new trial, and appealed in the nature of a writ of error to this court.
    Fletcher, for the plaintiff in error.
    1. I contend that this conviction was had upon illegal testimony, and that though no exception was taken on the trial in the court below, still the testimony upon which he was convicted was of such a character that this court will now allow of the exception. The proof of relationship was merely common reputation. The law requires the best evidence of any material fact to be produced. 1 Stark. Ev. 102, 389. In this case, the evidence of the father and mother is the best; that of near relations next. Common reputation will not do to establish a material fact in criminal cases, though it will do in civil cases. 3 Stark. Ev. 1100, 1101, 1102 in notes; 1103, 1104 and note 1, and note r; 1120, note 1: 3 Marshall’s Rep. 326: 1 Stark. Ev. 55, sec. 35: 2 Stark, 939: 2 Philli-more, 339, 359: 18 John. Rep. 37.
    In criminal cases, such as bigamy and incest, a marriage in fact of material parties must be proved, and not by common reputation. 1 Haywood and Cqbbs, 246: 3 Stark. Ev. 1185: 7 John, Rep. 314: 15 Mass. Rep. 163: Douglass, 171: 4 Burrows, 2057: 2 Connecticut Rep. 347: 13 Ves. 147, 514. The evidence of relationship in this case is merely reputation. Two witnesses alone speak of the relationship; and they say they were “so reputed” to be related. The relationship is of the very essence of the crime of incest. Then surely the very essence of the crime ought to be proved by the best evidence. In murder, reputation of killing will not do, the actual killing must be proved. So in larceny, the fact of stealing must be proved; common reputation of the stealing is not sufficient.
    
      2. The conviction was upon illegal testimony, because evidence was given to the jury or incestuous intercourse before the act of 1829 went into effect, and before the bill of indictment was found in June, 1832. 1 Stark. Ev. 387 : 2 Stark. Ev. 381, and note u: 1 Chitty’s Cr. L. 564. The prisoner’s confessions of similar acts would be immaterial and inadmissible. So of remote facts. Proof of similar acts to those charged in the indictment is only admissible where knowledge is necessary to be shown in order to constitute the offence charged. Here the prisoner was tried and convicted of acts, which, when committed, were not penal by this statute. Here was a trial for an offence that was perpetrated after the bill found.
    3. Though the testimony of previous and subsequent intercourse was illegal, and though it mainly contributed to the prisoner’s conviction, as he did not except to it at the time, can he take advantage of it now? I maintain that he can. If, in point of law, the testimony was illegal, the court will still give him the benefit of the exception, upon the ground of error in law. But if I am mistaken in this, and if a legal exception cannot now be taken as to the inadmissibility of the testimony, still the court will grant him a new trial upon .the ground that the evidence being irrelevant, does not support the verdict. I admit that an omission to except to the testimony on account of its quality, is a waiver, because the State might have had other testimony of abetter quality to prove the same facts. 1 Salk. 289: 1 Stark. Ev. 432: 11 Modem Reports: 4 Dallas. But what I contend for is this, that when testimony which is wholly irrelevant has been admitted, in such case the court will direct a new trial. 1. Because the testimony, being irrelevant, has nothing to do with the case. 2. And being irrelevant, the State cannot say, that by the non-objection it was thrown off its guard, and that it might have proved the same irrelevant fact some other way. The State cannot introduce proof 0f irrelevant facts; they are inadmissible. 1 Stark. Ev. 40: 2 Stark. Ev. 381: 1 Phillip’s Ev. 131, 142, 143. Therefore the State cannot be injured by a new trial.
    Upon principle, the defendant should have a new trial upon the ground of the admission of irrelevant testimony. Suppose there had been no evidence except that given before the statute passed and after bill found, and he had been on that convicted; without excepting to that evidence, would this court punish the defendant and refuse him a new trial? I believe not. Would it not rather grant a new trial? I believe it would. Then how can this court tell how much weight this irrelevant testimony had with the jury, when mixed up with that which was legal. Upon principle, the State never wishes to punish its citizens unless their guilt be legally shown. Upon principle, does the State wish to punish its citizens on account of the weakness or negligence of their counsel? Surely not. If the lawyer makes no objection, the judge should object to and exclude illegal and irrelevant testimony. 2 Stark. Ev. 381. If the means-by which a verdict of conviction is had are illegal, the judgment of punishment is of course illegal, and stands a stain upon the justice of the country. It is the duty of the judge, ex officio, to exclude illegal testimony. He should aid the prisoner in his defence. 2 Stark. Ev. 381.
    4. It is no where shown that the offence was committed in Bedford county. 1 Hay. and Cobbs, 191: Act of 1809, ch. 126, sec. 3: 1 Chitty’s Ci-im. L. 557. The county of Bedford is no where named in the bill of exceptions. Nor is mountain, dale, glen, river or creek, situated in Bedford county, named. Several places are named, but there is no indication where they are. The bill of exceptions states, “and this was all the evidence;” so that no presumption can be raised that the offence was committed in Bedford county. Upon this ground a new trial must certainly be awarded the prisoner.
    A. Hays, Atto. Gen. for 7th Sol. Dis. for the State.
   Catron, Ch. J.

1. Was the .evidence, that Sarah Ewell was the daughter of Pleasant Ewell, and that Dab-ney Ewell was the brother of Pleasant Ewell, competent?

The witnesses say they were so reputed. It is insisted tha.t the marriage of the father and mother of Pleasant and Dabney Ewell must be proved, and also that of Pleasant Ewell and his wife, the mother of Sarah Ewell, and'then the issue: that this is the best evidence of relationship: that the very fact of marriage of the parents must be proved as in cases of bigamy, and for criminal conversation.

In these cases the indictment in the one, and the declaration in the other, aver, of necessity, the existence of a marriage, for the violation of which the defendant is punished. In bigamy, if he had not been previously married, there was no crime in marrying.

But here, there is no such allegation, and no necessity for proof other than such as corresponds with the averment in this respect.

The witnesses say Pleasant Ewell and Dabney Ewell were reputed tobe brothers, and Sarah'Ewell was reputed to be the daughter of Pleasant Ewell. What more can any man prove of his neighbors generally? The fact of the birth of even the young woman it would be difficult to prove, the marriage of her parents still more so; and to prove the marriage of the parents of Pleasant and Dabney Ewell, and the respective births of these during that marriage would be so nearly impossible as to render a prosecution for incest a hopeless experiment. That the fact, recognized all their lives, never denied or doubted by any one, should be incompetent evidence to a jury to prove the Ewells brothers and that Sarah Ewell was the daughter of Pleasant Ewell, could not be proved by ’a young woman who had known her from her infancy, had grown up with, and been her playmate, comes so strongly in conflict with the common mode of learning who our neighbors are, that it is impossible to give it place sa the mind without violating the best impressed convictions of established truths. The plain sense of mankind would revolt at a decision declaring such proof incompetent, and in its stead requiring marriages and births to be proved, some of them having happened perhaps fifty or sixty years since, and probably in a foreign country, and that this too must be proved by persons present, and a marriage license be produced. To sustain the prosecution, two marriages and three births must be established by the best evidence the nature of the case admits of. I think this objection cannot be sustained, testing it either by common sense, on principle, or by authority.

It is a primary rule on the trial of issues, that the proofs must correspond with the allegations, and that this proof must be the best in the power of the party who maintains the affirmative. If it appear thatbetter evidence is behind, and in the party’s power, the presumption is that it is unfavorable, or it would have been produced. As if non est factum be pleaded to a bond sued on, the subscribing witness, if one, must be introduced to prove the execution of the bond; yet if he be beyond the jurisdiction of the court, the handwriting of the witness or obligor may be given in evidence, because the best in the plaintiff’s power. Stump vs. Hughs, 4 Hay. Eep. 96. In establishing rules of evidence, arguments from inconvenience have great weight. The situation of the country must be attended to, and the rules of evidence adapted to its circumstances. That which might be very easily proved in England, as a marriage by a parish register, it would be next to impossible to prove in a country new as this; hence tlie necessity, in some instances, of relaxing the rules of evidence found in the English books. That this should not be done, save in cases of the most manifest necessity, is admitted, yet such occasions will arise. In England it is a rule that in an action for criminal conversation with the plaintiff’s wife, a marriage in fact must be proved. Morris vs. Miller, 4 Burr. 2059. Acknowledgements, cohabitation and reputation are not sufficient to maintain the action, ouch a case presented itself to the supreme court of Pennsylvania, (Forney vs. Hallader, 8 Sergt. and R. 160,) where the court doubts the correctness of the decision in Burrow, but declares, were it correct, that circumstances peculiar to that State required the rule in some degree to be relaxed.. It is said, “the boundless field of enterprize in the new States that are continually forming, readers the habits of the people of America essentially those of migration; and besides^ no inconsiderable portion of the population is made up of emigrants from abroad, many of whom are married when they come here. The witnesses to marriages celebrated here, are in the usual course soon dispersed over this extensive country, and neither their testimony nor that of witnesses abroad can ordinarily be had, except at an expense that puts it beyond the reach of all whose circumstances are not above mediocrity.” These remarks apply with more force to Tennessee than they did to Pennsylvania, because this is a much newer country than that. In criminal causes, where the accused must be confronted with the witnesses, it would be impossible to prove a marriage in fact in a majority of instances,, indeed, in almost every instance where the marriage had taken place abroad, either in Europe or a sister State. To adopt, and in its strictness apply the English rule in cases of criminal conversation and bigamy, in this case, and compel the State to prove a marriage in fact between the father and mother of the Ewells; and then the marriage in fact between Pleasant Ewell and his wife, and this by witnesses present at the respective marriage ceremonies, would be requiring next to an impossibility. The county of Bedford, where the crime was committed, has been settled but little more than twenty years; that witnesses could be found there to prove the most recent marriage, is improbable, but that none could be found there to prove the marriage of the grand father and mother of the offending female, may be taken for granted. To sustain the objection to the competency of the evidence of reputation of marriage, would be to discharge the defendant.

But, uninfluenced by any considerations growing out of the situation of this country, wag not the evidence correctly admitted by the circuit court? The rule that the best evidence the nature of the case admits of shall be had, and that hearsay is not equal to knowledge of the fact" and generally incompetent, has its exceptions, grounded partly in necessity, and partly on the probability that common repute is true in certain cases. The exception has become a general rule of evidence where the fact of marriage, the state and condition of the family, or the relationship of its various members is sought to be established. Cohabitation as man and wife, and general reputation, are evidence of marriage as well as relationship. 1 Stark. Ev. 58: 2 Id. 959: Vaughan vs. Phebe, 1 Mar. and Yer. 17.

This being a general rule, does the case of incest form an exception to it? In bigamy the crime consists in violating the first marriage vow. This is precisely alleged in the indictment, and the English courts hold must be as precisely proved by evidence of the fact of marriage. In cases for criminal conversation, the violation of the marital rights of the husband is the ground of action. The marriage must be alleged and strictly proved. The strictness of the rule in cases of bigamy was recognized and provided against in the penitentiary act, (sec. 16,) so as to make the defendant’s acknowledgements and conduct evidence. Incest being a newly created felony by the 18th section of that act, must on a trial of the charge, be proved as charged. The charge is that the defendant had carnal knowledge of his brother’s daughter. To establish the relationship of the offending parties, that of the brothers must be made out, as also that of father and daughter. But these are incidental facts not alleged in this indictment, or required to be alleged by the statute. 1 o prove the relationship, the general rules- ol evidence apply in this case, as in others where pedigree must be proved to establish a fact or malee out a title. There is no difference as to rules of evidence in criminal and civil causes. 2 M’Nally’s Ev. 357, ch. 1, rule 6, At. Gen. vs. Le Marchant. Such proof as the nature of the case admits of and is in the power of the party, whether State or defendant, is competent in a prosecution for felony, if it would be competent in an action of ejectment. M’N’s Ev. 73. According to the rules of evidence laid down in the English authorities the proof was correctly heard.'

We have examined the case, of the State vs. Roswell, in 6 Conn. Rep. 447. There it was holden, a marriage in fact must be proved between the father and mother The father was charged with the commission of the crime of incest with his legitimate daughter, and the court grounded its opinion on the word legitimate. The Connecticut statute we have not seen, therefore cannot judge of the correctness of the decision.

It is next objected, that the court permitted the jury to hear proof of acts of incest by defendant before the penitentiary act took effect, and also after the indictment was found. So is the statement in the bill of exceptions. But no objection was made to the introduction of the evidence, and in a civil cause no advantage could be taken of the circumstance on a writ of error. The counsel for defendant, however, earnestly insists that as a revising tribunal, the supreme court ought to see that justice be done the defendant, regardless of the formalities observed in civil causes.

The law is well settled, that in a civil cause if evidence be offered which is incompetent, but permitted to go to the jury without objection, it is too late to except after verdict. The objection to the character of the evidence is waived. Jackson vs. Dillon, 2 Ten. Rep. 263.

On what ground is it asked to depart from this rule? The act of 1811, ch. 72, gives the appeal in the nature of a writ of error. The terms of the act do not seem to embrace criminal causes. The supreme court construed the act to include them, and determined in favor of its jurisdiction. So is the now settled law. But from this decision a consequence followed. To make the appeal in error effectual, it was necessary to give the the defendant the right to a bill of exceptions in the court below. The bill of exceptions is not authorised by the act of 1811, or any other American statute, but rests on the stat. of West. 2, 13 Edw. 1, st. 1, ch. 31. 1 Stat. at large 105. M’Nally’s Ev. 325: 1 Stark. Ev. 430.

The statute of West. 2, did not extend to criminal cases, as was determined in Sir Henry Vane’s case, 2 State Trials 343: M’Nally’s Ev. 325. Yet in this State it was permitted defendants to except so soon as the writ of error was allowed them under the act of 1811, the same as in civil causes, most probably without strict enquiry as to the authority. However doubtful the right may have been when first assumed, it is not now open to challenge. But on what ground does the plaintiff in error stand? On the foot of a party in a civil suit. The defendant has availed himself of a statute applicable in its terms to civil causes only, and to say it meant one thing in this cause, and differently in another, would be to shape it to our fancy. It is made our duty by the statute to revise the orders and judgments of the court below.— Evidence is offered by the state, is not objected to, and heard: nor is the court asked to withdraw it from the jury when the cause is finally submitted. A verdict is had, and then complaint is made that improper evidence was admitted. When the court or the opposite counsel is not asked to think or act, and all objections are waived, and an experiment is made, the rules of law and propriety require the party complaining should not be heard.' No judgment has been given for this court to revise. Suppose one of the grand jurors who found the indictment had been presented as a traverse juror, not objected to by the prisoner, and been one oí the jury who found him guilty: would this be error? Clearly not. The objection must come in time. 1 Yerg. R. 219. In admitting evidence there is no distinction between civil and criminal causes, the rules of practice in this respect being the same. The cause of Jackson vs Dillon is conclusive. It has been followed as undoubted authority, and often, by this court.

It is next objected, that it is not stated in the bill of exceptions that the crimp was committed in the county of Bedford; nor can the fact be inferred from the proof set forth in the record; which we are told was the whole proof.

The court below not having had jurisdiction from any thing appearing, .the defendant ought to have been discharged. We have anxiously looked for proof of natural objects, of which we can judicially take notice, to supply this defect in the facts set forth by the record, but none exist from which the fact may be inferred. We feel therefore bound on this ground to order a new trial.

Peck, J.

I will briefly notice two of the objections urged for the prisoner, Ewell.

First, the admissibility of evidence of acts of incest before the passage of the act of Assembly under which Ewell stands indicted, and like acts proved to have been committed after the finding of the bill of indictment and before trial.

In my opinion this evidence was inadmissible, and should, if incautiously admitted and not objected to, have been withdrawn from the consideration of the jury by the charge of the court; for if suffered to have influence it is impossible for this court to know on what part of the evidence offered the jury have predicated their verdict.

This question, I am free to own, would have been more clear if the evidence had been excepted to, and in that form presented to our consideration. Still, there is enough upon the record to show that it had been received; and the court having been called upon to grant a new trial, that motion so far preserves the point as to bring it to the notice of this conrt. The influence of illegal testimony offered by the State, though not objected to by the prisoner, was ground for a new trial; and that motion being overruled by the Judge, and all the evidence set out, we may fairly infer that this was urged as a main ground for setting aside the verdict. The court should have seen that no improper advantage had been taken of the prisoner; he was entitled to the law of his case, the last moment as well as the first. When the judge was pointed to the error, he should have corrected it; and it being my duty to give the judgment the Circuit Court ought to have given, I am for giving the new trial upon that ground.

Second point: That no venue appears to have been proved: The whole evidence being set out,establishes the objection, it must be allowed also.

I will not relax old and inflexible rules in the administration of the criminal law; there is no reason for it. Whenever we depart from the great landmarks which have been the guides for ages, we enter on a sea of uncertainty and hazard every thing.

While life and liberty are more precious than property, I am cautioned to be vigilant in my course, and am therefore unwilling to admit any doctrine which may savour of innovation. In the other point of the case relied on, I concur in the opinion delivered by the other member of the court.

Green, J. concurred with the Chief Justice in the first and third points, but was not satisfied either way upon the second.

Whyte, J. gave no opinion.

Judgment reversed.  