The Queen v Griffin

• Jurisdiction: Ireland
• Judgment Date: 04 June 1879
• Date: 04 June 1879
• Court: Court for Crown Cases Reserved (Ireland)

Cr. Cas. Res.

Before MAY, C. J., PALLES, C. B., O'BRIEN, J., FITZGERALD, B., LAWSON and BARRY, JJ.

THE QUEEN

and

GRIFFIN

The Sussex Peerage 11 Cl. & F. 85.

R. v. PoveyENR Dearsley, 32.

Burt v. BurtENR 2 Sw. & Tr. 88.

Reg. v. FanningENR 10 Cox Cr. Cas. 411; and 17 Ir. C. L. R. 289.

Rex v. The Inhabitants of BramptonENR 10 East, 282, 287.

Graham's CaseENR 2 Lewin Cr. Cas. 97.

Povey's Case 1 Dears. Cr. Cas. 32.

Reg. v. Savage 13 Cox C. C. 178.

The Queen v. Allen L. R. 1 Cr. Cas. Res. 368.

Reg. v. BrawnENR 1 C. & K. 144.

Reg. v. PensonENR 5 C. & P. 412.

Reg. v. MillisENR 10 Cl. & Fin. 534.

The King v. The Inhabitants of BramptonENR 10 East, 282, 289.

The Queen v. Allen L. R. 1 Cr. Cas. R. 369.

The Queen v. BrawnENR 1 C. & K. 141.

Warrender v. Warrender 2 Cl. & F. 488.

Munro v. Munro 7 Cl. & F. 842.

Brook v. Brook 9 H. L. Cas. 193.

Maghee v. M'AllisterUNK 3 Ir. Ch. Rep. 604.

The Queen v. Millis 10 Cl. & F. 534.

Beamish v. Beamish 9 H. l. Cas. 274.

The King v. Inhabitants of BramptonENR 10 East, 282.

Male v. RobertsENR 3 Esp. 163.

Brown v. Gracey D. & R. N. P. C. 41 note.

Lacon v. Higgins Ibid. 38.

Freemault v. Dedire 1 P. W. 428.

Reg. v. AllenELR L. R. 1 C. C. R. 367.

Reg. v. FanningUNK 10 Cox C. C. 411; 17 Ir. C. L. R. 289.

Reg. v. PoveyENR 1 Dears. C. C. 32.

Reg. v. PoveyENR 22 L. J. Mag. Cas. 21; 1 Dears. C. C. 32.

Burt v. BurtENR 29 L. J. P. M. & A. 133; 2 Sw. & Tr. 88.

R. v. Newton 2 Mood. & Rob. 503.

Bigamy — Marriage solemnized between British subjects in a foreign country — Evidence — 24 & 25 Vict. c. 10

THE QUEEN v. GRIFFIN (1). Bigamy-Marriage solemnized between British subjects in a foreign countryÂ.Evidenee-24 4- 25 Viet. c. 10 Upon a trial for bigamy, the evidence on the part of the Crown to establish the alleged bigamous marriage proved that the ceremony took place in an AmeÂrican State ; that both the parties were British subjects, professing the Roman Catholic religion ; that the ceremony was performed by Roman Catholic priests in a Roman Catholic church, after publication of banns, and that the parties afterÂwards cohabited. No evidence was given, either by the Crown or the prisoner, of the law of the State where the marriage was solemnized. Held (diss., MAY, C. J., and O'BRIEN, J.), that the evidence was sufficient to sustain a conviction. Per LAWSON, J. :-If British subjects in a foreign country go through a form of marriage which the law of this country recognises as binding, one of them being at the time previously married, the,offence of bigamy is committed ; and further, if it were necessary to show that the marriage in the present case was valid according to the law of the State in which it was celebrated, it should be presumed to be so under the circumstances proved, in the absence of evidence to the contrary. Per FITZGERALD, B. :-There is no authority for the proposition that a party relying on a contract, be it matrimony or any other contract, if'he shows that the factum has what may be called the natural essence of a contract of the kind in question, is bound to show, in the first instance, when the contract is made in a foreign country, that the foreign country has a law relating to contracts of the kind, and that the contract is conformable to such law. If proper evidence be given that it has what is of the essence of the contract, it will be presumed to be according to the foreign law (if any such there be), without any evide nceof such foreign law, until the contrary is shown. In every case of marriage the presence of a clerk in holy orders is evidence that the contract has what is of its natural essence-i. e., the present irrevocable pledging of the service of the person of each of the parties to the other-and, therefore, though the marriage be in a foreign country, if such presence be proved, a;foreign law invalidatÂing such marriage must be shown by him who impeaches it. Per MAY, C. J. :-To establish a charge of bigamy, the second marriage must be proved as a fact, irrespective of inference or presumption, and therefore when the ceremony has been performed in a foreign country, and does not come (1) Before MAY, C. J., PALLES, LAWSON and BARRY, JJ. C. B., O'BRIEN, J FITZGERALD, B., 498 LAW REPORTS (IRELAND). [L. R. I. Cr. Cas. Res. within the statutable exceptions, it cannot be held to constitute the offence 1879. without evidence of the foreign law governing the marriage. THE QUEEN The words " or elsewhere," in the 24 & 25 Viet. c. 100, s. 57, include any v. foreign country. GRIFFIN. CASE reserved by Mr. Justice Fitzgerald, at the County Kerry Spring Assizes, 1879. The prisoner was indicted for bigamy. The case stated that it appeared from the evidence for the proÂsecution that, on the 18th of February, 1871, the Defendant was married to Julia Kennedy, who was still alive. The marriage was celebrated in the chapel of Kiltalla, County Kerry, by the. Rev. James Sheehan, C.C., according to the rite of the Catholic Church. No question was raised as to the validity of that marriage or as to the identity of the Defendant. The Defendant and Julia KenÂnedy cohabited as husband and wife ; and some short time after the marriage, but it did not appear when, the Defendant went to America. The evidence given to establish the alleged bigamous marriage was as follows : Johanna Barton deposed :- " I was born at Cahirciveen, and about fifteen years since I left this country and went to the United States of America, where I resided until about two and a-half years ago, when I returned to Ireland. "I know the Defendant. I met him for the first time at Springfield, in the State of Illinois, about six or seven years agog. I was then and had been for the five or six years previous resident at Springfield. The Defendant' also resided there and lived with his sister. He proposed marriage to me and I accepted him, believing him to be, as he represented, a single man. I am a Catholic, and he professed to be a Catholic also. "I attended the services of the Catholic Churph at Springfield, and. have seen Father Burke and Father Brady officiate there Catholic curates. " The banns were called three times for us in the church, and after that the Defendant and I were present in the church, and were married by Father Burke, assisted by Father Brady. Father Burke read the marriage service from a book. I lived with the VoL. IV.] Q. B., C. P., & EX. DIVISIONS. 49W Defendant after that for about five weeks as his wife, and I was Cr. Ca. Res. received as such and called Mrs. Griffin. 1879. " Having got information that he had been previously married, THE QUEEN and that his wife was alive, I separated from him at once. My GRIFFIN. brother came out to Springfield and questioned the Defendant, but he persisted in his assertion that he was a single man at the time of our marriage. " I remained at Springfield for about a year after, and then removed to the State of Indiana, where I resided until my return to Ireland about two and a-half years since." Robert Nolan, a police-constable, proved that he arrested the Defendant on the 18th of December, 1878, at Killorglin, County Kerry, upon the present charge of bigamy. The evidence for the prosecution having closed, and there having been no evidence adduced on the part of Defendant-Counsel for the Defendant insisted 1. That the evidence did not prove the commission of any offence against our laws, or any offence of which the Queen's Court could take cognizance. 2. That there was no sufficient proof of the supposed bigamous marriage. 3. That there was no proof that the ceremony alleged to have been performed at Springfield would have been sufficient to constiÂtute a marriage according to the law of the State of Illinois, or of the United States, or that the ceremony was in the form prescribed by the law of Illinois, or of the United States. 4. That the marriage law of the State of Illinois, or of the United States, if relied on for the prosecution, should have been proved as a matter of fact, as in the case of The Sussex Peerage (1), and B. T. Povey (2). 5. That there was no proof that the canon law of the Catholic Church, or the common law of England as to marriage, had been adopted in the State of Illinois. 6. That the offence, if any, was committed in the State of IlliÂnois, and against the law of that State, and could not, consistently with international law, be taken cognizance of by any Court in this country. (1) 11 01. & F. 85. (2) Dearsley, 32. .500 LAW REPORTS (IRELAND). [L. R. t Cr. Cas. Res. 7. That the words " or elsewhere" in the statute 24 & 25 Viet. 1879. c. 100, s. 57 (1), should be construed to mean "or elsewhere within THE QUEEN the dominions of the Queen." 8. That the inference from the evidence was, that at the time of the supposed bigamous marriage both parties had become domiÂciled in, and were naturalized subjects of, the United States of America, and were consequently within the proviso of the 24 & 25 Viet. c. 100, s. 57, and they relied on the Naturalization Act, (33 Vict. c. 14). For the purposes of the trial the learned Judge refused to ruin the points so made by counsel in favour of the Defendant, and, on the contrary, held that the Court had jurisdiction, and that there was sufficient evidence, proper to be considered by the jury, of the marriage at Springfield with Johanna Barton, and from which the jury might infer that the ceremony then performed was sufficient to constitute a marriage, if it had not been for the preÂvious marriage with Julia Kennedy. It was not suggested that any special issue should be submitted -to the jury, nor was there any controversy, in fact, as to the eviÂdence of Johanna Barton. The learned Judge recommended the jury, if they believed the evidence of Johanna Barton, to find the prisoner guilty. The jury brought in a verdict of " guilty," but at the request of the Defendant's counsel the learned Judge'reserved the case for the consideration...