Opinion
Docket No. 1185.
April 23, 1925.
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Frank C. Collier, Judge. Affirmed.
The facts are stated in the opinion of the court.
C.I. Rosin, C.B. Morfoot and L.M. Powell for Appellant.
U.S. Webb, Attorney-General, and Erwin W. Widney, Deputy Attorney-General, for Respondent.
The information charged that the defendant committed the crime of bigamy by marrying one Sadie Kessler while he was the lawful husband of Grace Jordan. The defendant was convicted and sentenced. The appeal is from the judgment and from an order denying his motion for a new trial.
The defense presented by appellant was and is that the marriage to Grace Jordan was void by reason of a prior subsisting marriage of defendant to one Cora Leak.
After the defendant had testified to some facts tending to prove his marriage to Cora Leak, he offered in evidence an exemplified copy of a marriage license purporting to have been issued by a county judge in Mayes County, Oklahoma, and which had indorsed thereon a certificate of marriage purporting to have been signed by "H.A. Pearce, Christian Minister." It was certified by the county clerk that said instrument was "a full, true and correct copy of marriage license and certificate as the same appears of record and on file in my said office."
[1] Appellant's first point on appeal is that the court erred in sustaining the district attorney's objection to said marriage license and certificate, which objection was that no proper foundation had been laid for its admission in evidence. But we think that the ruling of the court was correct. There was no testimony of any witness who saw the certificate of marriage signed by Mr. Pearce, and there was no evidence of the genuineness of the signature. [2] A marriage certificate does not prove itself. Proof of the signature of the person by whom it purports to have been signed and of his authority to perform the marriage ceremony is necessary. The record of such an unacknowledged private writing as this is not made evidence of the truth of the recitals contained in it. ( People v. Le Doux, 155 Cal. 535, 550 [ 102 P. 517]; People v. Spitzer, 57 Cal.App. 593 [ 208 P. 181].)
[3] The court did not err in refusing a continuance for the purpose of enabling the defendant to send to Oklahoma for testimony to establish the additional facts which would have made admissible in evidence the said marriage license and certificate of marriage. The record shows that the defendant had ample time to prepare for the trial of the case. Both he and his attorneys knew that he would make the affirmative defense to which we have referred. Therefore they knew, or should have known, that they would have need of testimony to establish the facts of that defense. The application for a continuance was not made until after a large part of the evidence in the case had been heard by the jury. The circumstances as shown by the record do not indicate any abuse of discretion by the court in its refusal to grant a further continuance of the trial.
Finally, it is claimed by appellant that he was prejudiced by certain remarks of the court, made in the presence of the jury, and that the court erred also in refusing to instruct the jury to disregard those remarks. [4] The statements referred to could not have been seriously prejudicial to the defendant. They did not contain any expression indicating an opinion of the judge concerning the guilt or innocence of the defendant, or concerning the truth or falsity of any of the evidence. The statements chiefly consisted in expressions of impatience arising out of the fact that defendant had caused subpoenas to issue for the attendance of certain witnesses, and then had not caused those witnesses to testify. It may be conceded that the defendant should not have been criticised for his conduct of the case in relation to those witnesses.
The judgment and order are affirmed.
Curtis, J., concurred.