Alexander John JOHNSTON in Court for BIGAMY - Dunedin 1864 :: Genealogy
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Alexander John JOHNSTON in Court for BIGAMY - Dunedin 1864

Journal by ngairedith

this journal is an attachment to the journal James RUGG & Ann JONES

Alexander John JOHNSTON married Ellen Jane JONES in Dec 1855 in Liverpool.
- they were to have 4 children. (Tragically in 1866 their oldest son Thomas, at the age of 9, accidentally shot dead his 18 month old sister Ellen Overton Johnston - read at above link)
- Ellen was a sister of Ann Jones who married James RUGG in 1853 in Dunedin

Sometime after 1856 and before 1860, Alexander arrived at Gabriels Diggings. Within a few months he sent for Ellen. I believe that her sister Ann came with her (and perhaps their sister Margaret - still researching). On 14th April 1863 Alexander married Bridget Maria FLANNAGAN and had 2 children (forgetting to mention that he was already married), this little lapse of memory had him arrested in Dunedin 3 Sep 1864.

10 December 1864 - BIGAMY
... Alexander John Johnston was indicated for bigamy, by intermarrying with Maria Flannagan, while his wife Jane Ellen Jones was alive

Mr Howorth conducted the prosecution; and Mr WIlson appeared for the prisoner.
The following was the evidence:-
Robert LAMBERT, detective officer, Queenstown: I arrested the prisoner on this charge, on the 3rd September, in King Street, Dunedin. He requested me to go with him to a place in the Valley, and I went; a Mr Foster accompanied me. I saw two children outside the house, and I asked the prisoner if they were his. He said they were. In the house, I saw a woman, the same as now answers to the name of Mrs Johnston in Court.
The prisoner said to her that he was going to Gaol and she asked "What for?". I explained the charge, and asked if the prisoner was her husband and she said he was. I asked if she received a marriage certificate, and she said "Yes" and she gave me a document that I now produce.
The prisoner did not, in her presence, admit or deny anything. He asked her not to prosecute him on the charge, and I said that if he was really his wife she could not give evidence against him.
I went outside with the prisoner, and then he denied that the woman was his wife; but I took him in again and repeated my question to her, and she said that she really was married to the prisoner. On the way to the station, the prisoner again denied that the woman was his wife. At the station he gave the name of Alexander John Johnston.

Mr Wilson objected to the admission of the document. Clearly, it was not the original entry or register of the marriage - that was in the parish registry; nor did it purport "to be signed and certified as a true copy or exctract by the officer in whose custody the original is depoited"

The Judge confessed that he could not discover from what the document purported to be a copy. It was a great pity that such matters should be left in the hands of such legal dunces.

Mr Howoth thought that the document was admissible as coming from the proper authority.

The Judge could not admit that to be enough. Such documents were, by the enactment, made self-evidence if they were signed and certified as required; and generally they were clearly made to appear as extracts. He never saw one like that now before the Court; and he could not admit it in evidence.

John FOSTER, formerly publican at the Arrow, generally corroborated the evidence of Lambert. He had known the prisoner about two years; and had known him living with the woman in Court as man and wife. By Mr Wilson: Out of the woman's presence, the prisoner had denied that she was his wife

Ann RUGG, wife of James Rugg, carpenter, Dunedin; Mr maiden name was Ann Jones. In 1855, I was living in Liverpool with my father and mother. There were three brothers and two sister besides. One sister was named Jane Ellen and the other Margaret. Jane Elen is now sitting there in Court. I knew the prisoner in England. About nine years ago, in a November, he and Jane Ellen left father's house to get married. My sister Margaret, James Munro an John Grey went with them. They went about ten and returned about twelve o'clocl. I asked my sister if she was married, and she said "Yes" and kissed me. The prisoner lived in father and mother's house for four months, and always acknowledged Jane Ellen as his wife. My sister Margaret is not here. St James Church, Toxteth Park, is in Liverpool. The prisoner was here before Gabriel's diggings broke out; and three months after that he sent for my sister. They had have four children - I am now 22 years old.

Charle MacQUARIE, seaman: I knew the prisoner and Mrs Johnston. I saw in Liverpool about January or February, 1856, and I was accustomed to go and see them. They were living as as man and wife. The prisoner often admitted to me, at that time, tht he was married. They had then been recently married.

Mr Wilson submitted that there was no proof whatever of a valid marriage. What had been sworn to might be enough in some cases, but it was not enough for a conviction for bigamy. For that purpose, a valid marriage must be proved, celebrated by a person in holy orders. The document put in was nothing. The evidence was just this - the prisoner had said that he was married, and he had said that he was not.

Mr Howorth contended that the admissions of the prisoner were enough, when coupled with the facts of he and Jane Ellen Jones going out to be married, and afterwards living together as man and wife.

The Judge: It is to be regretted that there should be any doubt upon the point raised. But is should be distinctly understood that it is only in cases of bigamy, adultery, and petition for divorce, that there can be the least doubt of the conclusiveness of evidence of the kind now tendered. In bigamy, proof that the ceremony has been actualy performed might perhaps be essential. I shall, however, pro tem, take the prisoner's admissions, coupled with the other circumstances, as being enough, and the case must go to the jury.

Benjamin DRAKE: I am a minister of the body called Congregational Independents, at Invercargill. I am the Benjamin Drake mentioned in this 'Gazette' notice, as authoirised to solemise marriages. On the 14th April last, at Invercargil, I married the prisoner and Bridget Maria Flannagan, who is the woman now called before me. What is handed to me, is a copy of the register which I myself made.

Mr Wilon obected that the indictment charged marriage with Maria Flannagan; while the evidence and the certificate showed the name to be Bridget Maria
The Judge: That is amenable, and I should allow amendment
Mr Wilson: Does your Honor mean to admit the evidence of admission as suffucuent?
The udge: Not alone - there is cohabitation
Mr Wilson: Cohabitation is only presumptive evidence, and presumption is not allowable in bigamy
The Judge was not inclined to stop the case, although he admitted there was difficulty about it going to the jury
Mr Wilson, adressing the jury, urged that the evidence of Ellen Rugg, as to what her sister told her nine years ago - when she was a little girl - not in the presence of the prisoner, was not reliable. As to admissions, the prisoner had denied the alleged marriage as well as admitted it. The jury ought to have as clear evidence of the first marriage as they had of the second. A valid first marriage must be proved before conviction for bigamy; and even if the alleged ceremony in Liverpool was performed, the prisoner might have been a minor, or the woman might have been - and probably was, judging from her present appearace - or in a dozen other ways the ceremony might have been invalid. The jury could scarcely escape a doubt as to the validity of the alleged first marriage; and they must give to the prisoner the benefit of it.

The Judge briefly wnet through the evidence. If that evidence as to admissions was admissible, it would be almost to insult the understandings of the jury to think that they could have any doubt as to the marriage of the prisoner with Jane Ellen Jones. The point of objection was purely technical. He knew there was something like authority for it; but he might fnd that authority more seeming that real; and meanwhile he should leave the effect of the evidence as a whole to be decided by the jury

The Jury found the prisoner Guilty; and sentence was deferred

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on 2012-03-07 17:20:13

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