Swartz v. The State of Ohic. about the time of his last marriage, does there seem to have been anything in his conduct inconsistent with his having entered into the marriage relations with Henrietta. The authorities are numrerous to the effect that in a civil action a marriage may be shown by reputation and continued cohabitation; and we think the court was right in saying to the jury that such relation might be shown in a criminal case by the sar kind of evidence cautioning them as he carefully did that before they could find the accused guilty the evidence must be such as to exclude a reasonable doubt. Now that there may be the relation of husband and wife subsisting between parties where there has been no ceremony of marriage, is absolutely settled not only in very many other states but in this state as well. See the case of Cobb v. The R. R. Co. 35 S. page 94. Nobody makes a question here that Swartz may not have been the husband of Henrietta, though no marriage ceremony, such as is ordinarily recognized I mean, that which is provided for by the statute, has taken place. Among the authorities which have been examined is the case of Mary Eliza Hynes and others v. Kate McDermott et al., 91 N. Y., page 451. In the opinion in that case is a very elaborate discussion of the evidence necessary to establish the marriage relation. It has citaSons of so many authorities both in America and England, that it is an instructive case in this matter. It is true that that was a civil case, but it announces the evidence upon which the marrriage relation may be found. And remembering our criminal statute, that if one has a wife and marries another, he thereby commits the crime of bigamy, it seems to us if the evidence establishes beyond a reasonable doubt to the jury the contract which is necessary in order to constitute a marriage where there has been no ceremony of marriage as that is ordinarily understood, then the parties are to each other husband and wife. In 91 N. Y., the case to which I have referred, the relation between the parties commenced in adultery. They did not, at the outset of their cohabitation take one another for husbannd and wife. They went from England to Paris, in 1871. While they lived in England prior to their journey, they were living in adultery. The journey was an adulterous journey, and there was no evidence except that of reputation and continued cohabitation, that after they reached Paris, either in Paris or elsewhere after they left England, there was an agreement of marriage between them; but the court inferred thatthey promised each other while in Paris that they would be to each other husband and wife. In the case of Andrew J. Yates against Sam Houston, 3 Texas, 433, a question was, whether one Tabitha Harris was the wife of John Jiams. Their cohabitation began in adultery when Jiams had a wife living. No proof except her long absence from her home and friends, was offered to show that this former wife was not living at the time of the trial, yet the court held that the presumption was that she was dead and that the continued cohabitation of Jiams and Tabitha, after such presumption of the death of the former wife, should be held to establish a marriage between them. Other authorities to the same effect are found as follows: 14 Encyclopedia of Law, 527 and 529; 52 Mich.. 464 and 467. In the case of the state of Minnesota against Elmer Worthington, 23 Minn., 528, this language is used in the syllabus: "The presumption that cohabitation, illicit in its inception, remains such in charcter during its continuance, is one of fact for the jury and not one of law." In the same case at page 535 the court in its opinion make the following Cuyahoga Circuit Court. quotation from Bishop's work on Marriage and Divorce. "Though the intercourse between the parent may have been admitted wrongful and illicit in its inception, because of some legal impediment of marriage, yet after its removal, slight circumstances may and ought in a doubtful case to be pressed into the service of showing that the parties have converted, what was at first unlawful, into a subsequent lawful union." The court instructed the jury carefully as to what was necessary in order to justify them in finding that the marriage relation existed between Swartz and Henrietta. Special objection was made to the language of the court when he stated that the contract so made between the parties would be as valid in Ohio as though a chime of bells played a wedding march and half dozen bishops and clergymen assisted at the celebration before a thousand people; that neither a bishop nor a clergyman nor a civil magistrate need assist people in contracting marriage. The court had preceded the statement complained of by defining a common law marriage as "a simple agreement between one man and one woman, who may lawfully so contract, that they will take one another as husband and wife thenceforth, and that they will sustain this relation thenceforth so long as they both shall live, with the mutual understanding that neither one nor both can rescind the contract or destroy relation, followed by cohabitation, when they do this, they are married." Then follows the sentence already mentioned, "And their marriage is just as valid, in Ohio, as though a chime of bells played a wedding march and half a dozen bishops and clergymen assisted at the celebration before a thousand people." We think there was no error in this or any other portion of the charge, to the prejudice of the plaintiff in error. The definition of the common law marriage was a correct statement of the law in Ohio. The jury were carefully instructed that unless they found beyond a reasonable doubt that the relation of husband and wife existed between Swartz and Henrietta, they could not find him guilty. They were instructed that they might find him guilty without direct evidence of the contract having been entered into, but that unless they found from all the evidence the such contract had actually been entered into between them, they r t find him not guilty. We think that under the evidence the jury might well find the defendant guilty of bigamy. We affirm the judgment of the court below. Goodhart, Guardian, v. Speer. MARRIAGE-INSANITY. [Hamilton Circuit Court, March, 1893.1 GOODHART, GUARDIAN V. EDITH SPEER. RATIFICATION OF A MARRIAGE SOLEMNIZED WHILE ONE OF THE PARTIES WAS INSANE. Where a person has been adjudged insane and a guardian appointed, and such person subsequently marrie and then by a proceeding in the probate court is again restored to sanity after which he ratifies his marriage: Held, that where the evidence clearly shows that at no time since such person was adjudged insane has he been sane or possessed of sufficient mental capacity to be able to ratify the marriage contract, and, therefore, such marriage will be annulled at the suit of the guardian. APPEAL. SWING, J. This is an action on appeal from the court of common pleas. The only question controverted, is one of fact, and that is, whether John B. Ransley was sane at any time subsequent to his marriage to the defendant, Edith Speer-which marriage took place in New York on the day of —, and while sane ratified said marriage. At the time of this marriage Ransley was under guardianship, the probate court of Hamilton county having adjudged him insane and appointed a guardian for him, which occurred in ---, 189-. Afterwards, in the fall of the same year, in the month of Ransley came to Cincinnati, in company with his wife and a Miss Lathrop, and employed counsel; and upon a hearing the probate court of said county found that Ransley was restored to sanity, and removed the guardian. Shortly after this he became hopelessly insane, and is now confined in a private asylum. There is no question but what, if Ransley had the mental capacity to ratify this marriage, he did so by words and consent. The probate court on the evidence principally of Drs. Richardson and found Ransley sane. The same doctors have given their evidence in this case. They are both men of distinction, and their evidence is entitled to great consideration. They both believed Ransley sane when they saw him. They had not been long acquainted with him and their judgment was formed upon facts elicited from one or two examinations of him, taken in connection with his history. In addition to this, we have had the evidence of the attorneys who transacted business for him about the time he was declared sane by the probate court and one or two friends. These all thought him sane at that time. As opposed to this evidence we had the testimony of Drs. Buck, Ricketts Cook and Taylor, besides acquaintances who saw him about this time. Dr. Buck, who impressed us as a man of great ability and experience, as well as a very fair witness, testified to the effect that he had known Ransley intimately for twenty years, during which time he had been his physician, and during which time he had had frequent occasions to examine him and prescribe for him. He had seen him shortly before he was declared insane by the probate court, and he had treated him shortly afterwards. He said he had progressive paresis, and he was thoroughly Hamilton Circuit Court. satisfied that it was impossible that he could ever have been sane after the time he was adjudged ensane. Dr. Cook testified that when he first saw him he was suffering from progressive paresis, and that the disease had been of at least a year's standing, and that probably it was four or five years since its commencement. Dr. Ricketts testified that he was called upon to treat him shortly after the time in controversy-treated him for quite a while; that when he found him he was suffering from progressive paresis of long standing, and that he could not, in his opinion, have been sane at that time. To the same effect was the testimony of Mr. an old acquaintance, at whose house Ransley and wife took their meals at the time in question. A great number of letters of Ransley's written at times previous to the time when sanity was claimed to exist, were also in evidence. At the time Ransley was transacting business with the lawyers who testified, he was always in company with his wife and Miss Lathrop, and neither the evidence of the lawyers or of Drs. Richardson and show a mind free from all doubts as to sanity. The doctors say he was peculiar and nervous, and the lawyers talked only about nei business affairs with him; and while he was nervous, excitable and very talkative, they saw notesog to indicate insanity. But the testimony of Drs. Buck, Ricketts and Cook carried conviction to our mind of this fact, that at no time from the time when Ransley was decated insane by the probate court has he ever been sane or possessed of sufficient men al capacity to be able to ratify the marriage contract in question. A decree will be entered in accordance with this finding. C. D. Robertson, for the Guardian. Robert B. Bowler, for the Defendant. Ludlow et al. v. Dies et al. ROADS. Hamilton Circuit Court, February, 1893.] LUDLOW ET AL. V. DIES ET AL. WIDTH OF ROAD LAID OUT PREVIOUS TO THE ACT OF 1824. Where a road has been laid out and used previous to the act of February 26, 1824, which act authorized all cads to be sixty feet in width, a proceeding by the county commissioners under section 3 of the act of March 14, 1831, authorizing a resurvey of the road and a retut of the plat thereof, would not have the effect to widen the road to sixty feet. APPEAL. SMITH, J. We think the plaintiffs are entitled to the relief prayed for. The evidence shows that the North Bend road has been in use as a public highway for more than seventy-five years, and during all of that time has been on substantially the same ground, and enclosed by fences occupying practically the same position as those on the ground at the commencement of the suit in 1890, and the usual and average width of the road between the fences has been about forty feet. The trustees of the townships through which it passes, acting under the direction of the county commissioners, were about to open it to a width of sixty feet, and to tear down the fences standing within the additional ten feet on either side of the center line of the road, and cut down the trees and other obstructions thereon. General Cary testifies that in his boyhood it was reported to be a territorial road. There is, however, no record or other proof showing where or how it was established or opened. If it was done by proceedings under the acts of the territorial legislature, or after the organization of the state government in 1802, the laws of neither required a county road to be of any particular width until the statute of February 26, 1824, when, for the first time such roads were required to be sixty feet wide. There can be no presumption, then, as against the facts shown, that the road ever was established sixty feet wide. The proceedings had by the commissioners in 1841-2 had no effect whatever to widen the road to sixty feet. That was simply a proceeding under section 8 of the act of March 14, 1831, then in force, without notice to any one to "resurvey the road" and return a plat and survey thereof. This was done by the viewers and surveyor named, and the plat should simply show a survey of the center line of the road by course and distance, but with no statement or finding as to its width. This report being favorable to the establishment of the road as marked, it was approved by the commissioners; it was ordered that the plat be recorded, and the road established as a public road. This could not have the effect to widen the road as it then stood to sixty feet, and it did not purpo:t to do so; and it is conceded by counsel for defendants that no other teps have ever been taken which had the effect to establish the width o the road at sixty feet. Decree accordingly. Gerard, Lampe & Stallo, for Plaintiffs. Spiegel & Bromwell, for County Commissioners. 7 Dec. 4 |