Johns v. Johns

[1.] The communications of one person to another are incompetent testimony, being hearsay only. [2.] Confessions of parties against themselves are admissible in a libel for a divorce, when there is no suspicion of collusion. [3.] In a suit for divorce, the fact that the plaintiff had a friendly interview with his wife, and requested her to return home and live with him, does not amount in law to a condonation of the libel. [4.] To a libel for divorce, on the ground of cruelty in the wife, she may re* criminate the adultery of the .plaintiff, her husband.

Libel for divorce. Tried before Judge Cochran, at the October Term, 1859, of Charlton Superior Court. This was a libel for divorce, by George Johns, Sen’r, against Lucinda Johns, his wife, on the ground that said Lucinda had attempted to poison libellant. There was an amendment to the libel, charging respondent with adultery. Upon the trial, libellant offered in evidence the following testimony: George Johns, Junior, son of libellant, testified: That he saw a man by the name of Wheeler kiss respondent, in the house of libellant; and that respondent had put the strychnine in coffee and biscuit to poison libellant, and that he sat at his father’s feet to prevent it; that the strychnine had been put in a box of his, and respondent got it by obtaining the key to said box from him; the strychnine was found hid in a crawfish hole, about 250 yards from the house; that he was induced to go there to hunt it, by Mrs. Wheeler having told him about it. The statements of Mrs. Wheeler were objected to by respondent, but they were admitted by the Court as inducement to witness’s conduct, he testifying that they found it there, and that it was taken from respondent’s bosom. Gross-Examined. — The kissing took place in the hall, the parties standing up, touching each other with their lips; libellant was in. the piazza at the time. Dyass, from whom he purchased it, told him it was strychnine, and that he put it for varmints, and it had killed four; that he did not know that it had killed them, but he found them dead, and supposed the strychnine had killed them; that he did not see the respondent take the strychnine out of his box, nor did he see it taken from the crawfish hole, nor from respondent’s bosom; that he did not see any strychnine put in the coffee or biscuit. He asked respondent what possessed her to do it; she said she did not know, unless it was the devil; and that .he threw out the coffee, and she picked up the biscuit and carried it off; Mrs. Wheeler told him that poison had been put in the coffee and biscuit. Respondent objected to Mrs. Wheeler’s sayings; the Court refused to rule these sayings out, as they had been drawn out on cross-examination by respondent’s counsel, and respondent excepted. Libellant here closed. Respondent introduced the following testimony: Mien Dixon testified: That he saw libellant in bed with a Mrs, Ruis, at 8 o’clock at night and early next morning, in the manner of husband and wife, since the commencement of this suit. It was also proved by another witness, that libellant had been in bed with Mrs. Ruis, at her house at night, and on two other occasions with a Mrs. Baker, all since the commencement of this suit. Jas. M. Mberton testified: That libellant told him that he had turned respondent out of his house for loose conduct and trying to poison him. On cross-examination, testified, that respondent was a loose woman. Zeyheriah Roberts testified: That respondent resided at his house in Jacksonville, Florida, as a boarder, upwards of nine months; that her conduct was chaste and virtuous, so far as he knew; that while at his house libellant visited her, treated her kindly, and told witness he wanted her to go home with him; this occurred after the institution of this suit. The case being closed, respondent’s counsel requested the Court to charge the jury— 1st. That what was said by Mrs. Wheeler, about the strychnine and poisoning, was not evidence. 2d. That the confessions of the parties were not evidence. 3d. That if libellant was reconciled to respondent, when he visited her in Jacksonville, it was condonation, and they must find for respondent. 4th. That if the jury believe from the evidence, that libellant had been guilty of adultery since the commencement of this suit, that he was not entitled to a divorce. The Court refused to charge the two first requests, and charged the two last, with a qualification, and respondent excepted. The Court charged the jury, that the sayings of Mrs. Wheeler being drawn out by respondent’s counsel on cross-examination, were evidence as inducement. That the confessions of the parties are admissible in evidence. That if they believe that respondent attempted to take the life of libellant, it was cruel treatment; and if they find cruel treatment, sufficient to authorize a divorce, then adultery in libellant is no bar to a divorce. To which charge respondent excepted. The jury found for libellant, granting a divorce a vinculo matrimonii, and allowed respondent no alimony. The property belonging to libellant, as contained in the schedule' filed, amounted to $11,000, and there were no children, and the property came by the husband. Whereupon, respondent tendered her bill of exceptions, assigning as error the rulings, decisions, charge and refusal to charge above stated and excepted to.