Commonwealth v. Norcross

On an indictment for adultery, the marriage of the party charged may be provea by the testimony of witnesses present: a copy of the record of such marriage is not required.

The indictment, in this case, alleged that the defendant was married to Mary Mallett, then living, and that he committed adultery with one Patty Davis, then the lawful wife of Nathaniel Davis. The cause came on to be tried before the Chief Justice, on the general issue, at the last November term in this county; when the Solicitor-General, to maintain the issue on the part of the commonwealth, offered one William Mallett as a witness to prove the solemnization of a marriage between the defendant and the said Mary Mallett, by the Rev. Dr. Morse, at Charlestown, in the county of Middlesex, in the presence of the witness. The defendant, by his counsel, objected to this evidence as illegal; but the objection was overruled by the Chief * Justice; and the witness, being sworn, testified to the jury that he was present and saw the marriage between the defendant and the said Mary solemnized as aforesaid. After a verdict was returned against the defendant, he moved the judge for a new trial, on the ground that the said testimony was illegally admitted ; and the judge reported that if, in the opinion of the Court, thé testimony of William Mallett ought by law to have been rejected, a new trial was to be granted; otherwise the verdict was to stand. And now, at this term, J. T. Austin, for the defendant, argued that the statute (1786, c. 3, § 6) requires every justice and minister to make and keep a particular record of all marriages solemnized before them, of which they are yearly to make a return to the town clerk, who is again to record them, and also to return a list to the clerk of the county. This record is the best evidence; and the highest which the nature of the case supposes, the law will require, and especially in prosecutions for crimes.