Opinion
No. 16855.
January 19, 1961.
Laurence E. Dayton, U.S. Atty., Robert N. Ensign, Asst. U.S. Atty., San Francisco, Cal., for appellant.
Robert P. McNamee, William J. Keough, San Jose, Cal., for appellee.
Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.
The judgment of the district court is reversed. It appears to us that the admission of an affidavit by one Isabelo Beltran asserting that he performed a marriage ceremony for the appellee Grant and Lieutenant John W. Grant during the chaotic times of World War II in the Philippines was error. We could uphold the judgment but for the court's expressed partial reliance on the affidavit.
There should be a new trial unless the parties and the court are agreeable to resubmission of the case on the present record sans affidavit.
The burden of proof was on appellee, and it is easy to see that practical difficulties, if her story is correct, make it almost impossible for her financially to sustain the burden of proof if she must do it by herself with witnesses in the Philippines.
While the government has produced some contradictions, the trial judge is entitled to believe Mrs. Grant, if he is of the opinion that there is where the truth lies. And, he obviously did believe her after the affidavit came in.