People v. Stokes

McKinstry, J. The defendant was found guilty of the misdemeanor defined in the first section of “ An act to punish adultery,” which reads: “ Every person who lives in a state of open and notorious cohabitation and adultery is guilty of a misdemeanor, and is punishable,” etc. (Stats. 1871-72, p. 380.)

[264]The third section of the act provides: “A recorded certificate of marriage, or a certified copy thereof, there being no decree of divorce, proves the marriage of a person for the purposes of this act.”

At the trial the prosecution called the county recorder of Tulare, the custodian of the records, who read from his records as follows: —

“ John Stokes to Rebecca Gibson. This certifies that on the twenty-second day of May, in the year of our Lord 1859, John Stokes of Tulare County, California, and Rebecca Gibson of the same county and state, were by me united in marriage at the school-house in the Persian district, in the said county, according to the laws of California and the customs of the church to which I belong. E. B. Lockley, Methodist Preacher. Filed for record June 18, 1859, at 10, a. m., and recorded same day at 2 o’clock, p. m. E. E. Calhoun, Recorder.”

To the record the defendant objected that it was irrelevant, immaterial, and incompetent, because it did not appear that the John Stokes married was the defendant. When the objection was made, the district attorney said: “We propose to follow this up with proof that the John Stokes mentioned in this record is the person mentioned in the indictment as John W. Stokes,” and thereupon the objection was overruled.

The prosecution subsequently called a witness, who testified that in the year 1859 he was present in the “Persian school-house” when a marriage was celebrated by a Methodist preacher named Lockley, between the defendant and Rachael Gibson. This of itself was evidence of the defendant’s marriage; the statute does not exclude all evidence of marriage other than the record of the certificate. If it be suggested that the jury may have disbelieved the witness, and relied on the record of the certificate as proof of the marriage, still the testimony of the witness was admissible' as tending to identify the parties, named in the certificate.

[265]