
    *Charles J. Wolverton v. The State of Ohio.
    On an indictment for bigamy, the admissions of the defendant as to a prior marriage may be given in evidence to prove the fact of such marriage.
    This is a writ of error, directed to the court of common pleas of Cuyahoga county.
    The bill of exceptions shows that the defendant below was indicted for the crime of bigamy; that on the trial the prosecutor, to establish the fact of the former marriage, offered to prove by the admissions of the defendant, that .he had been married in the State of Michigan, which testimony was objected to by the defendant ; but the objection was overruled and the testimony received; to which ruling of the court exceptions were taken in due form; and the question now presented for decision is, whether the court of common pleas erred in receiving this testimony.
    Noble & Treat and Rowland D. Noble, for the plaintiff in error:
    Upon the recognized principles of law, that the best evidence which can bo obtained shall be produced, a fact which, by the law of the land, is required to be made a matter of record, should be proven by the production of the record, or of an exemjfiified copy thereof; but in cases of marriage, the rule prevails, to prove the fact before a jury by means of a witness who was present at the celebration, or by the production of the register, or proof of a copy of the same, together with proper evidence of the identity of the parties. 2 Stark. 505 (new ed.); 2 Greenl. 377; Arch. Crim. Plead. 592, 593.
    In criminal prosecutions, the marriage should be proven to have been celebrated in conformity with the laws of the country where it took place. 2 Stark. 653. And it has been *held that the prosecutor should prove what the law of that country was. 2 Stark. 510.
    A valid marriage must be proved ; the law will not presume it in criminal prosecutions as it will in civil cases. The proof should be of the highest character, and although the prisoner has, by cohabitation and otherwise, acknowledged the first marriage, and although such proof would be sufficient for the purpose of a civil action, except for adultery, it is insufficient in a prosecution of this nature. Arch. Crim. Plead. 594; 2 Stark. 219; Freeman’s case, 2 Stark. 654; People v. Humphrey, 7 Johns. 314; 1 East’s P. C. 470; Morris v. Miller, 4 Burr. 2057; Birt v. Barlow, Doug. 171; The State v. Raswell, 6 Conn. 446; 2 Stark. 506, n.
    The case of the People v. Humphrey, 7 Johns. 314, is exactly in point. In that case, Humphrey was convicted of bigamy upon his own confessions of his first marriage. The court there say; that the confessions of a prisoner out of court, without any other evidence of a marriage in fact, were insufficient for his conviction on a charge of bigamy.
    Henry Stanbery, attorney-general, for the state.
    The only question presented in this case is, whether, on a trial for bigamy, the confession of the defendant of the first marriage, made whilst he was cohabiting with the alleged first wife, is admissible.
    
      The cases upon this point are not uniform, as the court will see by reference to note Nb. 782, 3 Phillips’ Ev.
    In New York and Connecticut, the decisions have been against such proof; whilst in Pennsylvania and Maine they are the other way.
    The New York case (People v. Humphrey, 7 Johns. 314) is founded on a dictum of Lord Mansfield in Morris v. Miller, 4 Burr. 2056. The case before Lord Mansfield was an action for criminal conversation. The confession there was not by the husband, bub by the defendant in the action, who might be mistaken as to the fact, or derive his knowledge *from hearsay. Now, in such a [175 case, would it be proper to admit the confession of the husband— the plaintiff—to make out his own case ?
    Obviously there is a distinction between that case and the one at bar. Lord Mansfield does say, in the course of the case, that the confession of the first marriage is not admissible in bigamy. Sir Eletcher Norton, arguing for the plaintiff, maintains the contrary, after the dictum of Lord Mansfield, and says that “ confession would be good evidence on a prosecution for bigamy.” It would seem from this that there was not, at that day, a settled rule as to such testimony, and that the American cases, which have proceeded upon the dictum of Lord Mansfield as the English rule, have given too much effect to what was said.
    The case of Morris v. Miller was decided in 1767. The case of Joseph Freeman, which was an indictment for bigamy, was decided in 1795, and is to be found in 1 East’s P. C. 470. The confession of the prisoner as to his first marriage, coupled with other circumstances tending to show the marriage, was admitted. Some of the judges thought that the acknowledgment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment; and one of them observed, upon the case of Morris v. Miller, that there was a distinction between an action for a criminal conversation and an indictment for bigamy ; that in the former, the acknowledgment and cohabitation of the plaintiff could not prove his marriage against the defendant, and the acknowledgment of the defendant in such an action, of the plaintiff’s marriage, might be of a fact not within his own knowledge; as it must be if a defendant in bigamy admitted his own marriage. Mr. East remarks, upon this ease, that it is difficult to say that the acknowledgment is not
    
      evidence, like the acknowledgment of any other matter in pais, where it is made by a party to his own prejudice at the time, and that its weight should bo left to the jury.
    *A recent English case, Regina v. Simmons, 47 Eng. C. L. 164, shows that what was said by Lord Mansfield in Morris v. Miller, is not considered law in England at this day. The syllabus of that case is as follows :
    “On an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner, and it is for the jury to determine whether what he said was an admission that he had been legally married according to the law of the country where the marriage was solemnized.”
    The weight of authority is clearly in favor of the admissibility of the testimony; so, too, is the reason of the thing.
    The confession of a party, that the woman with whom he lives and cohabits is his wife, ought to be admitted against him. He has full knowledge of the fact, and it ought not to be presumed, in his favor, that what he has so stated is false, and the cohabitation a criminal intercourse.
   Birchard, C. J.

The plaintiff was indicted for the crime of bigamy, tried, and convicted at the late March term of the court; of common pleas for the county of Cuyahoga. On the trial the prosecutor offered to prove the first marriage, which was solemnized at Detroit, in the State of Michigan, by proving, among other circumstances, the admissions of the defendant made while living with the first wife. This testimony was objected to; the objection was overruled, and a bill of'exceptions taken. The first assignment of error presents the question : Did the court err in permitting this evidence of the plaintiff’s confession to be given to the jury to prove the marriage ?

Upon the propriety of admitting such evidence, the authorities are conflicting, as will be seen by a reference to the cases cited by counsel. It is said on behalf of plaintiff that the ruling of the court was in conflict with the well-established rule requiring the best evidence to be produced of which the nature of the case admits, and that, by the law of the State of Michigan, records are required to be kept of all *marriagos, and that the prosecutor should have been required to produce the record. Upon this theory, it would follow that the marriage could not be proved by a person present at the ceremony ; and yet such proof is always admissible.

Indeed, reasoning upon principle, it would be difficult to assign a reason against the competency of evidence of confession in this case, which would not be equally valid against the proof of any confession, or against receiving a plea of guilty to the indictment. It is true that confessions of marriage may be made by persons living in a state of fornication, with a view to secure the offenders from public censure, and thus make a case unlike the ordinary cases of confession against one’s interest. This, in our opinion, furnishes no reason for rejecting the evidence as incompetent. It shows rather that the confession thus made should not be relied on and held by the jury, when unsupported, sufficient to work a conviction. In such a case, and indeed in all cases where the confession of a party is given in evidence, its force must depend upon the circumstances under which it is made; and of these circumstances the jury, under the advice of the court, are the proper judges. It is rather a question of credibility than competency of the confession, and, like all confessions, to be considered of much or little weight according to the attending circumstances; and these may be such as render it very conclusive of the fact, or as tend very little to sustaining it.

Were courts to reject proof of confession when the time, manner, and circumstances under which it was made, were such as tended to weaken or destroy its force, they would be substituting, in fact, their own judgment for that of the jury, and would make it their business to weigh and estimate the value of evidence to the exclusion of those who, by the law, are the legitimate tribunal for that purpose.

The error next assigned is, that the verdict was rendered against the plaintiff, when, by the law of the land, it should have been rendered in his favor.

The plaintiff can take nothing by this assignment. If it *were well founded, the plaintiff should have moved for a new trial, and failing in that, should then have taken a bill of exceptions presenting the entire evidence in the case.

Judgment affirmed.  