16 N.J. Eq. 122 | New York Court of Chancery | 1863
Tlie bill is filed by the husband against the wife for a divorce, on the ground of adultery. The parties were married at Plainfield, in this state, where they both resided, on the eighth of February, 1858. At the time of the marriage the husband was about twenty-three, and the wife twenty-one years of age. Two children were born of the marriage, viz. a son, who was born near Augusta, Georgia, where the parties temporarily resided, on the-eighteenth of February, 1859, and a daughter, born at Plainfield, on the third of April, 1860. They continued to cohabit as man and wife until September nineteenth, 1860, when the wife left the house of her husband, with her two children, and went to the city of New York, where she remained about ten days, when she returned with the children to Plainfield, and went to reside with her mother.
‘ On the fourteenth of November, 1860, she filed her petition in this court asking a divorce a mensa et thoro from her husband, on the ground of extreme cruelty, and charging that she was compelled to leave his house in consequence of his ill-treatment, which became unendurable. On the sixteenth of January, 1861, the wife filed her petition for alimony pendente lite, which was granted on the fifth of February thereafter. On the last named day, the bill in this cause was filed by the husband, asking a divorce a vinculo matrimonii, on the ground of adultery. The further prosecution of the suit, instituted by the wife, was thereupon suspended, and the suit of the husband is now brought to final hearing upon the pleadings and proofs.
The simple question in the case is, whether the evidence is sufficient to support the charge of adultery. The complainant offers both direct and circumstantial evidence of the charge; direct evidence I mean of facts, from which the conclusion of guilt is a necessary and unavoidable inference.
I. As to the direct evidence. Mrs. Maria E. Berckmans, the mother of the complainant, testifies that in June, 1859, she saw the defendant lying on the sofa in the parlor, and Dr. Titsworth lying on her. She further testifies, that in the fall of the same year, she saw the defendant sitting on a chair in her bed-room dressed in a loose sack, with her neck and bosom exposed, and Dr. Titsworth sitting close by her in another chair, with one of his arms lying on the defendant’s neck, and kissing her. His other hand had hold of one of the defendant's hands, and was lying on her lap. The witness adds: “ I stayed looking at them only one moment, till the defendant got up, and he put both arms around her and kissed her, and then I went away.” If this testimony is true, it precludes the necessity of further investigation. All speculation as to the guilt or innocence of the defendant is at an end. But the defendant and the alleged particeps eriminis have been examined. They both utterly and most explicitly deny the truth of the charge. Dr. Titsworth testifies, in regard to the parlor scene : “I never was lying upon the sofa, neither was Mrs. Berckmans, in my presence. There is no truth in the statement of the witness. * * * I pronounce her statement in regard to the bed-room scene
1. The complainant’s witness states that the sofa upon which the transaction occurred in the parlor, stood' on the side of the room, opposite to the door, with the back of the sofa against the fire place. The defendant alleges, and offers evidence to prove, that in June, 1859, at the time of the alleged transaction, the sofa stood on the opposite side of the room, behind the door. It is clearly shown that the place usually occupied by the sofa, was against the mantel. It is shown, I think with equal clearness, that during a part of the summer of 1859, it stood on the opposite side of the room. But when it was removed, or where it stood in the month of June, 1859, is not ascertained by the evidence with sufficient clearness to discredit the testimony of the complainant’s witness.
2. It is insisted on the part of the defence, admitting the sofa to have stood where the witness alleged it did, that it was physically impossible for her to have seen from the posi
The witness stated that she saw the transaction in the bedroom through the window of her dressing-room and through the window of the bed-room. Respectable witnesses, after repeated experiments, testified that they were utterly unable to see any object in the bed-room, looking through the windows of the two rooms, or even by opening the window of the dressing-room. Other witnesses testified that objects could be. distinctly seen from one room to the other, looking through both windows. The witnesses on both sides testified with equal confidence and manifestly with equally firm convictions of the truth of their respective statements. And in the earlier stages of the evidence there was a serious and apparently irreconcilable conflict in the testimony. But in the progress of the testimony, the cause of the difficulty has been satisfactorily explained. The window of the dressing-room opened to the east, the window of the bed-room to the south, at the distance of two or three feet from the dressing-room window. The line of vision was such that the external light falling upon the glass of the window of the bed-room obliquely, was reflected to the eye of the observer, thus converting the window into a mirror, and leaving the room beyond in utter darkness. By partly closing the shutter of the window on the side opposite to the observer, so as to prevent the reflection, the whole difficulty was avoided, and objects within the bed-room rendered clearly visible. This objection to the credibility of the witness is thus removed. Simple as the solution now seems, it was not discovered till much testimony on the point had been taken. The witness
3. The witness further testified that she saw the transaction upon the sofa in the parlor, from the green-house, through a window which opened into the green-house from the parlor. The sofa stood under the mantel, with its back against the breast work of the chimney, and toward the side of the room in which the window was. But a small part of the end of the sofa projected beyond the breast work of the chimney, so that a large portion of the sofa was entirely concealed from the view of a person at the window. The hack of the sofa at the end was high, and was directly in the line of vision between the window and the seat of the sofa. Careful measurements have been made and furnished, with a diagram, to the court, the accuracy of which arc not called in question, and which, it is insisted, render it demonstrably certain that the witness could not have seen persons lying on the sofa as she testified. The witnesses on the part of the defendant, by whom the premises were examined, testify that the experiment was made and repeated in their presence, and that a person lying on the sofa could not be seen from the position in which the witness stood. Other witnesses of equal respectability, by whom the premises were subsequently
I turn, therefore, to other aspects of the evidence of the witness, and of the attendant circumstances, which I deem of importance as effecting her credibility. This transaction is alleged to have occurred in June, 1859. At that time and for months afterwards, not the least intimacy is shown to
FTor does the conduct of the mother-in-law appear to me consistent or reconcilable with her knowledge of the infidelity of her daughter-in-law. Her son was an only child, in whose welfare she must have felt the deepest interest. So long as the infidelity of his wife was a matter of doubt or suspicion, she would naturally have remained silent, and confined her suspicions to her own breast. But when she had been herself an eye witness of her guilt, when she knew with absolute certainty the unfaithfulness of the wife and the dishonor of her only son, it seems but natural that she should have made some effort to reclaim or restrain the wife, or at least to assure the son of the wrong he was suffering, that he might guard against its continuance. She disliked the daughter-in-law. She was opposed to her marriage to her son. She refused to be present at the wedding. She naturally preferred that her son should marry one of her own nation, of her own religious faith, and of his own sphere in life. He did neither. Regarding the daughter-in-law as an alien to her race, as a heretic in religion, and probably as a dishonor to her family, it was natural that the mother should entertain for her the most unfriendly feelings. She avows frankly that she disliked her at the time of her marriage, and that her dislike increased. There was obviously no sympathy or kindly feeling existing between them. The daughter-in-law was tolerated under the mother’s roof for the son’s sake, but it does not appear that she ever received from her a word of kindness or sympathy. There was no feeling of kindness to restrain the disclosure of the wife’s infidelity. It is in evidence that the wife was treated by the mother-in-law with unkindness, if not with cruelty. She threatened, as she admits, for unguarded, perhaps disrespectful language on the part of the wife, to drive her from her house. She charged her in the hearing of her servants with theft, and yet she
II. The direct evidence of guilt having failed, the complainant’s case must rest upon the circumstantial evidence adduced in its support. It is clearly not necessary that the offence should be proved in time and place. The mind of the court must be satisfied that actual adultery has been committed, but if the circumstances establish the fact of general cohabitation it is enough, although the court may be unable to decide at what time the offence was committed. Loveden v. Loveden, 2 Hagg. C. R. 1; Hamerton v. Hamerton, 2 Hagg. E. R. 8; Grant v. Grant, 2 Curties 16; Bishop on M. and D., § 422.
The first of the chain of circumstances relied upon in proof of the general cohabitation of the parties, is the length and frequency of the doctor’s visits to her.
This evidence covers a period of about five months, from the last of March, or first of April, to the first of September, 1860, during the period that the complainant lived in his brother Prospcr’s house, on the opposite side of the road, and a short distance from his mother’s. Five witnesses testify upon this point. One of these witnesses, John Simpson, speaks of Dr. Titsworth visiting the house frequently between the first of January and March. He thinks the complainant removed into the house on the first of January. In this he is clearly mistaken. The complainant did not remove into his brother’s house until late in March, a few days before the return of his mother from Georgia. So she testifies, and so the evidence in the case clearly shows. After the first of
' The frequency and length of these visits, especially in the absence of the husband} without explanation, would certainly justify grave suspicions. But it is shown that Mrs. Berckmans was confined with her second child on the third of April, when her eldest was but little more than, a year old, that after a partial recovery she suffered a relapse, and that she continued a long time in delicate health, having the care of two young children, without a professional nurse. It appears from the doctor’s account book, which is produced iu evidence, that he visited Mrs. Berckmans twice in March, previous to her confinement, that he delivered her of a child on the third of April, that during the month of April his professional visits were very frequent, and that they continued with greater or less frequency daring the summer. None of his visits were made secretly or at unusual times. The only circumstance of suspicion is that they were long, and generally made during the husband’s absence. It appears that the husband was absent daily at the seminary, from nine to twelve in the morning, and as some of the witnesses say, in the afternoon also. The visits were most frequently made in the morning during a portion of the day usually devoted to professional visits. It should therefore excite no remark, that it occurred during the absence of the husband from home. The professional visits of physicians 1o the families of men of business afe probably, in a great majority of cases, m de when the father of the family is absent.
The third ground of suspicion is, examinations of, and operations upon the person of the wife, with electro magnetism and with instruments, in September, October, and November, 1859. The details of these operations have been introduced into the evidence for the purpose of showing that they were unnecessarily gross; being indecent liberties with the person of the defendant, and indicative of sensual feelings and purposes on the part of the physician, and that it was in
But the most significant of all the circumstances relied on as evidence of the wife’s guilt, is the participation by Dr. Titsworth in her flight from the husband’s house, his visiting her in Uew York, and his continued intercourse with her after her return.
There is little or no dispute as to the facts in relation to this part of the case. The real question is, as to the nature and motives of the flight of the wife, and the object with which the assistance was rendered. Was it the flight of an adulteress through the complicity of her paramour ? Or the flight of a virtuous wife from the real or fancied wrongs of the husband, and was the assistance rendered through the mere promptings of friendly sympathy ? The evidence clearly shows that alienation subsisted between the husband and wife, from causes unconnected entirely with the wife’s relations with Dr. Titsworth. Of the long continued existence of these difficulties, whatever may have been their origin, there is no question. Of the discordant relations between the wife and the mother-in-law we have already spoken. It is obvious that the wife was very reluctant to return to live under the roof of the mother-in-law. She did return on Saturday, the first of September. On Sunday Mrs. Marsh, the mother of the wife, visited the daughter at the house of Mrs. Berckmans, the mother-in-law. She was ordered to leave the house, and on her refusal to do so, the husband, with the aid of two men who had been procured for the purpose, attempted to remove her by force. The wife interfered for her mother’s protection. A violent struggle ensued, in the course of which the wife and the mother both received injuries, and the mother was compelled to leave the house. On Monday, the wife communicated to the doctor her intention of leaving her husband, if she could take her children with her. On Tuesday she consulted counsel, and repeated
Wednesday, 4 p. m.
Mrs. B. I have seen Esq. B., and he thinks the better way for you is to go unprepared, that is, without making any disturbance or exciting alarm, and upon more mature reflection, I think myself that will be best and certainty the easiest. For instance, let Bickey take Gussie riding in his wagon, and when you are all ready, with your hoops well laden with children’s clothing, &c., then tell Bickey to draw him to the front gate, and Hennie with Nina, quietly but quickly * * * the hot-house, down the walk, and all at one move get into a carriage all ready, and * * at Bonnell, taking the first by-street to place of destination. N. B. Don’t have the children dressed different from common daily dress; if you do it will foil you. Put on as many dresses and- clothing as you can each, and attach the children’s clothing to skirts. Be assured this is your best and safest course. I will see Dr. Sherman or Mrs. S., and have them drive up and stop at Bonnell, after the-first train arrives this p. m.; and then if E. is down town, as he frequently is, avail yourself of the opportunity and slip, and don’t delay too long about your things, but go with them if you can, but without them if you can’t. A Friend. In the margin was written: I must see you to night, it may be the last opportunity in a long while ; don’t fail. Let no one read this, and burn it immediately.
In accordance with this arrangement, the wife left her husband’s home on the nineteenth of September. The doctor saw her before leaving Plainfield, prescribed, and gave medicine for her children who were sick. The wile went to New York with her children and remained there ten days, then returned to the house of a friend near Plainfield, then to her mother’s house where she continued at the commencement
The arrangements for her departure, the consulting of counsel, the appeal to a magistrate, her manifest anxiety respecting her children, the general tone of the letter, are all I think utterly repugnant to the idea of the flight of an adulteress from the home of her husband, at the procurement or with the connivance of a paramour. The letter, the arrangements and circumstances of the transaction, afford convincing proof that the wife left the house of her husband, not as a criminal, but because she believed (whether right or wrong is immaterial) that she had justifiable cause for her departure. If it bo conceded that the flight of the wife was without any justifiable cause, and the aid and counsel afforded by Dr. Titsworth an unwarrantable interference, it does not materially aid the complainant’s case.
There are other facts in evidence, but they do not materially vary the aspect of the question. Evidence of a mother’s errors or indiscretions can surely be no evidence of a daughter’s guilt. Exposure to contagion is no proof of the existence of disease, though it may render its occurrence more probable. So exposure to moral contagion may render the existence of moral guilt more probable, but it will not justify the court in abating one jot of the evidence requisite to prove actual guilt. It is no province of an earthly tribunal to visit the iniquities of parents upon their children.
Nor is the conduct of Dr. Titsworth, as a witness before
The case in some of its aspects is not free from difficulty, ■and my mind has not been free from doubt during the progress of the investigation, but after the most anxious consideration I feel that those doubts can only be safely resolved in favor of the defendant’s innocence.
To establish the existence of adultery, the circumstances must be such as would lead the guarded discretion of a reasonable and just man to that conclusion. It must not be a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations. 2 Haggard C. R. 2; 2 Greenl. Ev., § 40; Bishop on M. & D., § 423.
The facts proven must be such as cannot be reconciled with probability and the innocence of the parties. Dailey v. Dailey, Wright’s R. 514.
Mere imprudence, indiscretion or folly, is not conclusive evidence of guilt. The mind of the court must be satisfied that there was an intimacy between the parties, entirely inconsistent with the duty which a virtuous wife owes to herself and to her husband.
Guided by these principles, I do not feel warranted in pronouncing the defendant guilty of adultery. While there is •much in her conduct to regret and censure as indiscreet and ill advised, I do not find in the evidence satisfactory proof of guilt. Where the conduct of a party admits of two interpretations, equally consistent with probability, the one involving guilt and the other consistent with innocence, the rule of evidence as well as the dictates of justice, require that the interpretation should be favorable to innocence.
The burden of proof is upon the complainant, and it must be clear to justify the court in condemning a young wife to a life of dishonor, and her children to shame.
Every material circumstance relied on as presumptive evi
There is force as well as justice in the suggestion of counsel, that while each circumstance standing alone may admit of explanation and fail to command our belief of the defendant’s guilt, yet the case is to be decided upon a view of all the facts combined, and that when they are grouped and presented in one view, they lead irresistibly to the conviction of the defendant’s guilt. T have re-read and considered the evidence in that aspect, with all the care which the importance of the case demands. And while it may be admitted that there are grounds for doubt as to the innocence of the defendant, there are controlling circumstances which preclude a conviction of guilt, to which I will briefly advert.
At the very threshold of the inquiry we meet the significant fact, that the bill filed by the complainant in this cause is virtually a defensive measure. The defendant left her husband’s house with two infant children, the eldest eighteen months old, a poor and almost friendless woman, on the nineteenth of September, 1860, and found shelter under her mother’s roof. Within two months she filed her petition for a divorce, on the ground of her husband’s cruelty. She applied for alimony, and exhibited proofs in support of the application. It was not until February of the following year that the husband awoke to a sense of his wife’s guilt and his own wrongs, and filed his bill for relief. All the material facts of the case were within his knowledge before the wife had commenced proceedings against him. His mother had told him that she had with her own eyes witnessed the adulterous intercourse. He knew of the wife’s visits to her mother, and of the company in which she returned to his house on several evenings previous to her flight. He had himself traced her movements with the assistance of his Italian friend. He knew of the physician’s visits, both in Plainfield and in Hew York, and yet he forbore to take a step for the vindication of his injured honor. In the investigation of a wife’s guilt, the conduct of the husband is al
But the evidence furnished by the husband’s conduct is not merely negative. There is, after the abandonment and return of the wife, the strongest direct evidence of his unshaken confidence in her virtue. It is proven that after the wife’s return in October, when she went to his house to take away her things, that they had an interview, that he said he was sorry for what had happened, and that if she kept Jrerself true to him they might live together after the affair was settled. True, this evidence, comes from the lips of the wife, but it is not contradicted by the husband. It was a fact peculiarly within the knowledge of the parties themselves, and therefore, if untrue, -eminently proper that he should have' been called to contradict it. Is it possible that the husband who uttered that language could have believed his wife guilty ? Does it not afford the strongest incidental proof of a fact which the evidence strongly favors, that the trouble between these parties has really been occasioned by the indiscretion and unwarranted interference of others ?
Some of the evidence relied on as proof of criminal intercourse, points to a period of time when the wife was in the last stage of pregnancy; other portions of it to periods when she had just given birth to a child, during the period of her confinement or during severe illness, or the illness of her children, or when she was laboring under natural and severe mental anxiety; periods certainly when sensual indulgence would not be anticipated.
The evidence covers a period of four and a half years, extending from the marriage of the parties in February, 1858, down to the close of the testimony in 1862. It covers not only their entire married life, but the period of eighteen
In order to prove adultery by circumstantial evidence, two points are to be ascertained and established; the opportunity for the crime, and the will to commit it. Where both are established, the court will infer the guilt. The radical difficulty with the complainant’s evidence is, that while it establishes the one, it utterly fails to prove the other.
I cannot but think that the able and learned counsel of the complainant, in their conduct of the evidence and argument of the cause, felt the full pressure of this difficulty. Failing to prove a blemish in her reputation or a stain upon her virtue, they prove that her mother had been divorced, that the visits of her physician are too frequent and too long, and that, having no father, or brother, or friend, to whom she could have recourse, she resorted to that physician for counsel and guidance, when she was about to fiy from her husband for his alleged cruelty.
Note. Decree unanimously affirmed by the Court of Appeals, at March Term, 1864.