Page:Federal Reporter, 1st Series, Volume 5.djvu/296

 28e FEDERAL REPORTER. �the matter without regard to the technical question as to the proper mode of making the defence, or her riglit to make it under the plea of not guilty. Mr. Baron Garrow said in Rex V. Hassall, 2 C. & P, 434, S. G. 12 E. C. L. 207, where a woman was convicted upon insufiScient evidence of marriage, that "if the parties, however, be really married, and will make a proper application to the secretary of state, supported by proof of the marriage, they will sustain no injury by the want of evidence of marriage before me." Thie implies, I take it, that he would recommend her pardon, and seems to be Borne support for sustaining a conviction, unless the judge is satisfied some injury bas been done. But in that case the jury had passed on the question of marriage, and the very kind of proof the defendant offered in this case was received, although pronounced insuffioient by the jury and the court to prove the marriage. It is not, therefore, an authority to uphold the verdict in this case, where the testimouy was re- jected. The proof offered might not have been sufficient to prove the marriage ; but of that the jury was the proper judge, not the court. It was competent evidence, as the case of Rex V. Hassall, supra, adjudicates, it being there said "that though, in cases of this kind, it is not absolutely necessary to give direct proof of actual marriage, yet such evidence must be adduced as to satisfy the jury that the parties are in fact husband and wife, in the same way as to convince them of any other fact that they are to find." Thebarrenness of such proof to establish the marriage is well shown, but the court permitted the jury to pass on it, nevertheless, and that, too, under a plea of not guilty, though, unlike this case, it was a joint indictment against the man and woman, she being de- scribed as a single woman. The real question, in this branch of the case, is whether the court will grant a new trial where it appears that the evidence rejected was competent and tended to prove the issue, but was insufficient for that pur- pose. In the case at bar I cannot say that the proof rejected was ail the proof of which the case was susceptible, nor ail the defendant would offer. Bhe was precluded by the ruling ����