For the defendant in error, William A. W. Grier, prosecutor of the pleas, Salem county.
For the plaintiff in error, David I. Horuvitz.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The plaintiff in error appeals from his conviction on an indictment for non-support. He had never been ceremonially married to Catherine Bright for whose non-support he was convicted, the state contending that he was in fact her husband by virtue of having held her out as wife -- in other words, as his common law wife.
Most of the assignments of error challenge the court's rulings on the admission or rejection of evidence.
The first ground of appeal challenges the admission of some testimony of the witness, Bailey, a grocer in Pennsville, where the plaintiff in error lived with the said Catherine Bright. The witness had testified that Catherine Bright, as she is designated in the testimony, had a charge account at his store under the name of the defendant; that the defendant had
opened the account saying to let "Kate" (the complaining witness) have what she wanted and that he would pay the bill; and that the defendant had later discontinued the credit account. The witness had already testified without objection from defendant, "I have always understood ever since I have known them that the relation was in the form of a common law marriage." The court then said -- and this is the alleged error -- "Q. You understood it was a common law marriage, is that what you mean by that?" The answer was "Yes." An exception was entered on the record on the ground that this was the conclusion of the witness. Obviously it was and in all probability the testimony was likewise incompetent, but the witness had previously testified, as mentioned above, to the same fact in substance without objection on the part of the plaintiff in error. We think receiving the evidence, under the circumstances, was harmless.
The second point in the brief says that it was error to exclude a question addressed to the same witness, Mr. Bailey, as to when he first knew that the plaintiff in error had "the status of a single man." As to this it is sufficient to say that the information sought on cross-examination was later obtained when the witness answered that he did not know whether or not plaintiff in error was a single man.
It is next said that the court fell into error in permitting the complaining witness, Catherine Bright, to testify that the defendant introduced her as his wife. We perceive no error here. The testimony that the plaintiff in error introduced the witness saying, "This is my wife," tends to prove that they were in fact married. Either party to a marriage is entitled to testify as to the fact of marriage. If offered by itself to prove general repute, it would have been error.
It is next argued that the court was in error in receiving in evidence a Christmas card addressed to Mr. and Mrs. Charles Bright, Jr., dated December 21st, 1927, sent by the defendant's daughter, Lida, whose handwriting was identified by the complaining witness. It is asserted that the ...