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Vol. IV.]

McDONALD v. The State.

[No. 11,

rule, it would fail to perform the chief duty for which it was established. Our duty is to correct errors, and to minister justice. But such a course would perpetuate error and produce the most intolerable injustice.” But to these propositions we cannot yield assent. No such doctrines have ever been announced by the tribunals that for centuries have made, interpreted, and administered the common law. On the contrary, the courts of England in administering justice in criminal cases have, save in rare and exceptional instances, been watchful of the liberties of the subjects, and have taken care they should not be oppressed by the crown. Their doctrine has been that men must be punished according to the law of the land, and that to punish them otherwise is tyranny. It would, we think, be a startling novelty to the great judges of the English courts to be told it is monstrous and intolerable that a party should escape punishment who has been duly convicted of crime, but upon whom a sentence has been imposed which the law does not authorize. From the many cases wherein they have made decisions that have led to that result, we infer they have regarded such escapes as less fraught with evil consequences, than for courts to attempt to usurp authority in order to inflict punishments. The decision which we have thus examined at length is, in our judgment, exceptional, and in conflict with the whole current of authorities, both in England and in this country. We cannot adopt or follow it, and shall not exercise any such powers, unless they are conferred upon this court by the legislature.

Is there then any law which has given this court the power to pass a proper sentence in this case, or to remand it to the criminal court for that purpose? We know of none. The 14th and 16th sections of art. 5 of the Code have no application to such cases. They give the court no power to modify criminal sentences, or to direct them to be modified by the inferior courts. The same provisions were in force when Watkins v. The State was decided, and in that case this question was fully argued. The reversal of that judgment without a procedendo is conclusive of it.

Whether the plaintiff in error, by thus requesting and obtaining his discharge from this indictment, has waived the protection which the law provides against the second jeopardy, so that he can be re-indicted and retried on the same charge, as has been suggested by some jurists and text writers, is a question we are not now at liberty to decide. It has not been argued on either side by counsel, and we should be stepping far beyond the line of duty, if not committing a grave impropriety, in now expressing any opinion upon it. We can only say with C. J. Shaw, in Christian v. The Commonwealth, that “whatever other remedy the state may have, it is not competent for this court to pass a new sentence upon this prisoner, nor to remit the case to the criminal court.” Our power is limited to a simple reversal of the judgment.

Judgment reversed.

NOTE BY THE REPORTER. – After the above decision was rendered, the prisoner, Patrick McDonald, was arrested, while in the jail, upon a bench-warrant issued out of the criminal court of Baltimore city, charging him with the murder of Daniel Brown. Whereupon he petitioned the Hon. Jas. L. Bartol, C. J., for a writ of Habeas Corpus, which was granted; and upon the hearing, it was admitted on the part of the state

Vol. IV.)

JONES v. JONES.

[No. 11.

that the felony and murder charged in the warrant was the same as that for which the petitioner bad before been indicted and tried; the chief judge, after full argument, discharged the petitioner, deciding:

1st. That the facts being admitted, it was competent for the judge under the Code, art. 43, to decide the question whether there was sufficient legal cause for the detention of the petitioner.

2d. That the petitioner having been arraigned and regularly tried upon a sufficient indictment, and a legal verdict having been rendered, had been in jeopardy, and that he could not lawfully be placed in jeopardy a second time for the same offence.

3d. That the former trial was, in no sense, a mistrial. If it had been, the court of appeals would have remanded the case, so that the party might be tried again.

4th. That the petitioner, by suing out his writ of error, and obtaining a reversal of the judgment, had not waived the protection which the law provides against a second jeopardy, and was not liable to be again indicted and tried for the same offence.

In the opinion rendered by the chief judge, he remarked : “ If the prisoner, after having been duly convicted of manslaughter, escapes punishment, by reason of an error in the sentence, this results from the want of legislative provision in such cases to enable the court of last resort to correct the sentence, or to remand the case to the criminal court for that purpose. Such legislation was had in England in 1848 (11th and 12th Victoria, ch. 78), and has been enacted in several of the states."

åth. That the judgment, heopardy, and wa

dictedes against angement, had notevout his writ of

EVIDENCE. - LOST LETTER. — PERSONAL RESEMBLANCE. DEPOSITION OF DECEASED WITNESS. — ENTRIES IN FAMILY BIBLE. —MARRIAGE. PRESUMPTIONS. — ILLICIT COHABITATION. — MARRIAGE OF SLAVES.

JONES v. JONES.

Where a person to whom a letter was addressed has been dead for several years,

leaving no personal representative of whom inquiry could be made concerning it, and the letter is not shown to have been of such importance as to require its preservation, it may well be presumed that the letter has been lost or destroyed, and secondary evi

dence of the address written on it may be admitted. In a trial involving the question, whether a particular person was the legitimate child

of his alleged parents, evidence of his personal resemblance to his alleged father is

not admissible. To render admissible the deposition of a deceased witness taken in an equity cause, it

is incumbent upon the party offering the deposition to prove the bill and answer in

the cause. The offer of the deposition should be accompanied with a proffer to show that it was

the deposition of a deceased witness taken under oath, in a judicial proceeding, involving substantially the same question or matter in dispute as that on trial, to which the plaintiff and defendant in the suit on trial were parties, and that the party against whom it is sought to be used had the right and opportunity to cross-examine the

witness.

It is improper to offer all the original papers in the former cause without disclosing of

what the papers consisted.

Jones v. Jones.

[No. 11.

Vol. IV.)

Not all the proceedings in an equity cause can be offered in order to let in the deposi

tion of a deceased witness, but only such parts of the proof as show the nature of the cause, and the parties to the controversy ; and they are not to be received as evidence for the jury, but for the court only, to enable it to determine whether the deposition

is evidence proper to be allowed to go to the jury. In order to prove the existence of a record which does not belong to the same court,

the proof must be by transcript under seal, and not by the original papers. The entire case, or the consideration of any particular question involved in it, should not be taken from the jury upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, if there be any evidence from which a rational con

clusion may be drawn as opposed to the theory of such prayer. Before such a prayer can be granted, the court must assume the truth of all the evi

dence before the jury tending to sustain the claim or defence, as the case may be, and of all inferences of fact fairly deducible from it, as on demurrer to evidence, and this though such evidence be contradicted in every particular by the opposing evidence

in the cause. But where the evidence is of such an inconclusive nature that no rational conclusion can

be fairly drawn from it in support of the claim or defence sought to be maintained by it, it is the imperative duty of the court to instruct the jury that such evidence is

not sufficient to be considered by them. Questions as to whether verdicts have been rendered against the decided weight of

evidence, or in disregard of the rules of evidence, or from passion or prejudice, can only be dealt with by the court in which the trial takes place, upon motion for a new

trial. In a case involving the question of marriage, where there is no impediment to mar.

riage, and the connection between the parties was illicit in its commencement, it will be presumed to continue to be of the same character; and in order to overcome that presumption it will be necessary to adduce other evidence than that of the cohabitation

of the parties to establish their marriage. If, after the birth of a person claiming to be the legitimate child of his parents, though born

as a bastard, there be no cohabitation of his father and mother, the latter assuming the name of the former, and the parties treat each other as man and wife, and treat the claimant as their child, and they are treated as, and reputed to be, man and wife by their friends and acquaintances, these are facts proper to be submitted to the jury, from which marriage may be inferred, notwithstanding the original illicit connection

between the parties. The presumption of marriage will not arise from the cohabitation of a man with a woman, if during her life and without any proof of a divorce, he marries another

woman. Under the law of this state the marriage of a slave without the consent of the master

was not actually, void. The Act of 1777, ch. 12, prohibited ministers of the gospel from publishing the banns, or celebrating matrimony between servants, or a servant and a free person, without the consent of the master. Held: that this act did not render the prohib

ited marriage void. On questions of marriage, births, deaths, &c., entries in a family Bible or Testament

are admissible, even without proof that they have been made by a relative, provided the book is produced from the proper custody. Proof of the handwriting or authorship of the entries is not required, when the book is shown to have been the family Bible or Testament.

APPEAL from the superior court of Baltimore city.

This case arises from the following issues sent from the orphans' court of Baltimore city to the superior court for trial:

First, Is Henry Jones, one of the respondents to the petition in this cause, a lawful child of Andrew D. Jones, the intestate, whose estate is for distribution in the cause ?

Second, Did the said intestate leave a widow? If yea, who?

By the order sending these issues for trial, Henry Jones was to be the plaintiff in said trial, and David Jones and others the defendants. All the

Vol. IV.)

Jones v. Jones.

[No. 11.

parties are colored persons. Henry Jones, the plaintiff, claims to be the legitimate child of Andrew D. Jones, deceased, and that his father was married to his mother, Henny Jones, a slave woman, after the year 1819, and offered evidence at the trial tending to prove this fact. The defendants claim, and offer evidence tending to show, that Andrew D. Jones, at the time of the alleged marriage, was the lawful husband of Anne Jones, who died about the year 1844, after which he married Francis Moore, who claims to be his widow.

The first, second, and third exceptions are sufficiently stated in the opinion of the court.

Fourth Exception. The defendants, after other evidence, produced a paper purporting to contain the deposition given by one Tabitha Toy, before W. S. Pinkney, a commissioner of the circuit court of Baltimore city, in a cause depending in said court of Jones v. Jones. And further offered to prove that said paper had been filed among the proceedings in said cause, and that it was now produced from the bundle of original papers in said cause, all of which original papers defendants offered to give in evidence, and offered to prove that they were the original papers, and all of the original papers in said cause, and that said plaintiff was a party to said cause. And also offered to prove by the commissioner who took said deposition, that it was taken before him as commissioner of the circuit court of Baltimore city, in said equity case of Jones v. Jones, and returned by him to said court. And also offered to prove that said Tabitha Toy was now dead. And thereupon offered said paper, purporting to contain the deposition of said Tabitha Toy in evidence, in connection with the offer to prove the facts above stated. The plaintiff objected to the reading of said deposition in evidence under the offer made by the defendants, and the court (Dobbin, J.) sustained the objection. The defendants excepted.

Fifth Exception. After all the evidence was closed, the defendants offered the following prayers :

1. If the jury find from the evidence that Henry Atkins, alias Jones, was the child of Henrietta Atkins, and that said Henrietta was, at the time of the birth of said Henry, a single woman, and that after the birth of said Henry no marriage in fact was had between said Andrew and Henrietta, then the verdict on the first issue should be for the defendants, and that there is no evidence of any such subsequent marriage.

2. If the jury find that Andrew D. Jones married Anne Smith in February, 1819, and thereafter lived and cohabited with her as his wife until the death of said Anne, if they shall find such death, and that after the death of said Anne, the said Andrew married the said Frances, and lived and cohabited with her as his wife until his death ; then the marriage of said Andrew and Henrietta, as alleged, cannot, after the marriage of said Andrew and Anne, be established by cohabitation between said Andrew and Henrietta, or by repute that they were married, unless the jury find such cohabitation or repute between the death of said Anne and the marriage of said Andrew and said Frances; and if the jury do not find such cohabitation and repute of said Andrew and Henrietta in the said interval, then the plaintiff ought to prove an actual marriage between said Andrew and Henrietta before the marriage of said Andrew and Anne, if the jury find the latter marriage.

ing of sprove the said Telpon offeffered to

Vol. IV.]

JONES v. Jones.

(No. 11.

3. That the burden of proof is upon the plaintiff, Henry Jones, to establish his legitimacy by showing a valid marriage between Andrew D. Jones and Henrietta Atkins, either by a marriage actually celebrated, or in the absence of proof of such a marriage, by the cohabitation of said Andrew and Henrietta as man and wife, or by repute that they were married, and that there is no evidence in this cause of any such marriage actually celebrated, nor of the cohabitation of said Andrew and Henrietta as man and wife, nor of any repute that they were married, or were husband and wife.

4. That if the jury shall find any intercourse whatever between the said Andrew and said Henny Atkins, and that the same was illicit in its commencement, then the presumption of law is that it so continued, and the burden of proof is upon the plaintiff to establish some subsequent valid marriage, of which there is no evidence.

5. That if the jury find that Andrew D. Jones married Anne Smith, on the 14th February, 1819, and that they thereafter lived together as man and wife until the death of said Anne, if they shall find such death, and that thereafter the said Andrew married Frances Jones, and lived with her as his wife until the death of said Andrew, and shall find that the said Henry Jones, the plaintiff, was not born earlier than the year 1820, and that the said Henrietta Atkins, his alleged mother, never cohabited with said Andrew, nor bore his name commonly, nor was by repute known as the wife of said Andrew, then the plaintiff cannot recover, and the finding of the jury upon the first issue should be for the defendant. .

6. That there is evidence in the cause from which the jury. may find that Frances Jones was lawfully married to Andrew D. Jones, and that if they so find, their finding on the second issue should be, that Andrew D. Jones did leave a widow, and that that widow is Frances Jones, one of the defendants.

7. That if the jury find that at the time of the alleged marriage between said Andrew and Henrietta, the said Henrietta was a slave, and thereafter continued a slave until the year 1863 or 1864, then the said alleged marriage was not valid, unless the owner of said Henrietta consented thereto; and if the jury shall find that Captain Frazier, mentioned in the evidence, was, during the time aforesaid, the owner of said Henrietta and never consented to the said marriage, then the jury should find that no valid marriage took place between said Henrietta and Andrew, as alleged on the part of the plaintiff, and that there is no evidence in the cause from which the jury can find or presume that said Captain Frazier, in his lifetime, or during the time aforesaid, consented to said alleged marriage, or treated said Henrietta as having been married, and that there is no evidence of any marriage between said Andrew and said Henrietta after the latter became a free woman.

8. That if the jury believe that the slip cut and produced in evidence was taken from a Bible, a part of a Bible found in the intestate's house, and in the custody of his administratrix, then the same is evidence of itself without the necessity of proof of handwriting. .

The plaintiff's counsel agreed in open court that the court should instruct the jury as prayed in the defendants' fifth prayer, and the court accordingly granted the same, and also granted the defendants' sixth

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