Commonwealth v. Gamble

Citations

• 36 Pa. Super. 146
• 1908 Pa. Super. LEXIS 126

Syllabus

<p>Criminal law — Adultery—Binding instructions to convict — Failure to give opportunity for full defense — Marriage—Evidence—Presumptions.</p> <p>It is only under very exceptional circumstances, if ever, that the court will be justified in giving binding directions to the jury to convict the defendant in a criminal case. Under no circumstances may this be done, without giving him a fair opportunity to present all of his relevant and material testimony, and according to him the constitutional right to be heard by his counsel upon the question.</p> <p>By the law of Pennsylvania the status of marriage is reached through contract, deriving its validity from the consent of the parties thereto. There are different modes of proving the fact of marriage, but that it must be proved when it has been put in issue by a plea of not guilty to an indictment charging adultery, before the defendant can be convicted of that offense, is indisputable. It is not necessary to prove a ceremonial marriage in the presence of a civil or religious officer, but in the absence of that and of direct evidence of a marriage per verba de prsesenti, there must be proof of conduct or declarations from which it may be presumed that the status of marriage has been entered into by the mutual consent of the parties.</p> <p>On the trial of an indictment for adultery the court cannot charge the jury that the presumption of the prisoners’s innocence is conclusively rebutted by proof of prior cohabitation and reputation of marriage with another woman, than the one referred to in the indictment.</p> <p>In such a case where the defendant testifies positively and emphatically, in contradiction of the prosecutrix that there was no marriage between them, ceremonial or otherwise, and that he had never promised to marry her, or agreed to marry her, but admits on cross-examination that at one time he had passed her off as his wife, and introduced her as such at a hotel, it is reversible error for the court to stop