Sherwood v. Titman

The opinion of the court was delivered, March 25th 1867, by Thompson, J.

— The first assignment' of error has reference to the admission on the trial below, of certain testimony offered by the plaintiff, of the conduct of the defendant, and his (the plaintiff’s) wife, in June 1861. The objection was that it had already appeared by the plaintiff’s testimony that he and his wife had separated in the month of April preceding ; that they had ceased to live together; but there was nothing to show that either had relinquished his or her marital rights as against the other. There may be some ground to dispute whether, after a separation, in which the cause is the adultery of the wife, and she with her husband’s wish and consent has left his bed and board and protection, he could maintain an action against one for debauching her. The loss of society and comfort enters so largely into the grounds of the action that respectable writers think he could not, although the marriage bonds remain unbroken in law ; and there are opinions and analogies the other way. But we need not resolve this question in any particular way in order to sustain the ruling of the court in regard to this testimony.

The proof here shows an improper intimacy between the defendant and plaintiff’s wife, for over a year prior to the separation. Its criminal character was denied and the truth of the witnesses,/ who gave to it other than an innocent meaning and aspect, disputed. After the separation, with less regard perhaps to appearanees than before, they continued their intimacy, and thus their acts served to interpret their previous conduct; to render that which had been left doubtful, certain, in the minds of the jury. “ When the fact of adultery is alleged to have been committed,”-, says Greenlf. Ev., vol. 2, § 47, “ within a limited period of time, it is not necessary that the evidence be confined to that period, but proof of acts anterior to the time alleged, may be adduced in explanation of other acts of like nature within that period.” In Gardner v. Madeira, 2 Yeates 466 , which was an action of crim. con., the court, on the point under consideration, said, “ after laying a reasonable ground to infer an improper connection between the parties within the limited period, the court will be more liberal afterwards in receiving other evidence of indecent conduct at other times, tending to show the criminal views and acts of the parties.” Somewhat analogous is the rule in slander, which permits proof of the speaking of the words after suit brought. The proof interprets the motive and the malice in speaking the words charged. Neither argument nor authority has been submitted by the able counsel who prepared the paper-book for the plaintiff in error on this point. With all proper respect for his opinion, his confident assertion of error in the ruling does not satisfy us. We think there was no error in it.

2. The second error is also without merit. The defendant had introduced testimony by the mouth of his own son, of what had been *80 said and done between the plaintiff and his wife, on the occasion of the introduction of a person the witness had brought to plaintiff’s house, at his request, as he testifies, to draw up an agreement of separation between them; and he testified not only to what took place on that occasion, but what w'as said by them as the reason and cause of the separation. It was therefore entirely competent for the plaintiff, not by way of contradiction merely, but as independent, rebutting testimony, to show what he alleged transpired at the same time and place, by another witness present. In doing this the witness, Kellog, who was the scrivener to draw up the agreement of separation, introduced the name of the defendant, as declared on part of the plaintiff, in presence of his wife, to be his reason for desiring a separation from her. He charged his misconduct with his wife as moving him' to do what he was then about. Clearly it was evidence in this respect, if not strictly res gesta, a point which need not be determined. The defendant opened the door for the testimony, and cannot complain that it was not closed soon enough to suit him.

3. This error was predicated of a conversation between the witness and defendant in relation to what the plaintiff had alleged against the.latter in regard to having intercourse with his wife. What was said, and what answer the defendant gave, was surely evidence. If he had admitted the charge to be true, it would have been evidence, and what the charge was would have had to be stated in order to get the reply. So if he prevaricated, his answer would be evidence: but what he prevaricated about would have to be stated. It is too plain for argument or authority that this testimony was properly evidence.

4. The errors to the charge of the court'will be considered together, they are two in number. The complaint seems to be that the learned judge, after instructing the jury that if they believed from the evidence that it was the adultery of the plaintiff’s wife with the defendant, which caused the separation or conduced to bring it about, the verdict should be for the plaintiff; and added a qualification claimed in the defence, although there was no point submitted to raise it, “ that if Ellen Titman, (plaintiff’s wife) was a common prostitute, and her prostitution was with the knowledge and assent of her husband, he cannot recover ; but that until his assent is shown, either by knowledge and acquiescence, or. otherwise, he cannot be regarded as having abandoned his marital rights or put himself outside the protection of the law.” It is claimed that in place of putting this portion of the defence on the ground of “ knowledge or acquiescence” “ or assent” of the husband to the prostitution of his wife, the judge should have charged that if she was a prostitute by the “ passive sufferance or connivance of the husband, it would bar the action;” 2 Greenlf. Ev. § 51. There is scarcely a shade of difference in *81 these forms of expression. “ Passive sufferance” and “ connivance” imply knowledge, and if the acts suffered were without remonstrance, it would be assent although perhaps not choice. If there really was a preference as to the terms in which the idea should have been presented to the jury, it was the province of the counsel to have suggested it to the court, and then on failure of being indulged in the preference, we would doubtless have felt ourselves more imperatively called upon to scrutinize the distinction between the terms used and those preferred: to have noted the tints of coloring, and whether the one cast a deeper shade over the features of defendant’s case than in strictness could be approved, and to have corrected the faulty execution if it existed. Such a picture of propriety had the defendant caused to he presented, that it should not have been marred by any departure from strict rule. But this was not done, and it was quite as well it was not, for we doubt if we could, with the natural powers of vision, have discovered any real difference between these forms of expression in their applicability to a case like this.

Seeing nothing to correct, the judgment is affirmed.