65 Ill. App. 446 | Ill. App. Ct. | 1896
The action ivas slander brought by appellee. The charge in the declaration was the appellant had repeatedly said the appellee was a whore. The appellant filed pleas of justification, wherein it was averred the appellee, before the speaking of the words set out in the declaration, had committed adultery with A. N. Melton, John Tackelson and John Stanley.
The case was submitted to a jury and a verdict returned in favor of appellee in the sum of $4,000.
Remittitur in the sum of $1,000 was entered—motion for new trial overruled and judgment rendered against the appellant in the sum of $3,000, to reverse which he has perfected this appeal.
Appellee became the wife of Edward Claypool (son of the appellant), in the month of July, 1889.
At that time she resided in Relevan, Illinois, but immediately after the marriage she and her husband made their home for a few months in the family of appellant in Menard county, Illinois, and then moved into an old house upon appellant’s farm. Soon after, appellant built a new house for them on his farm, and they lived in it until their separation, Avhich occurred October 30, 1893.
The immediate cause of their separation was the belief entertained by the husband that appellee was guilty of illicit sexual intercourse with Melton, and the appellant, during the course of their family troubles, spoke the Avords set forth in the declaration.
We have carefully read and considered the testimony.
Unless the jury were warranted in disbelieving the positive testimony of one witness supported by much corroborating testimony they should have found appellee guilty of adultery with John Stanley.
Circumstantial evidence was produced tending so strongly to establish the charge she.had committed adultery with Melton after her marriage with appellant’s son that we would without hesitation affirm a verdict of the jury to that effect.
Like testimony, little if any less convincing in character and weight, that she had sustained adulterous relations with Tackelson was introduced.
Other competent testimony confirmatory of the truth of the charges of her guilt with Melton and Tackelson was offered in behalf of appellant, but ruled inadmissible by the court.
The appellee and her husband separated October 30,1893.
She began this action in slander in February, 1894, and soon after left her home on appellant’s farm and removed to Greenviewin the same county.
One O. P. Thompson testified to circumstances which occurred before the separation in 1893, from which an inference she was sustaining guilty relations with'Melton readily arose.
Counsel for appellant then propounded a number of ques- • tions to the witness but the counsel for appellee objected to the witness answering them and the court sustained the objections.
Among such questions were the following:
Q. I will ask you if a month or two after plaintiff moved to Greenview that sumpier you saw A. N. Melton go to the evening train and get on the platform as though he was going away on the train and then get off of the train on the other side and go up through town to the plaintiff’s house?
Q. After the beginning of this suit, in February, 1894, do you know anything about Melton frequenting plaintiff’s-house ?
Q. I will ask you to state if, at any time after beginning of this suit, in February, 1894, you knew of any act of adultery having been committed between this plaintiff and A. FT. Melton.
Ida M. Osterberg, a witness introduced by appellant, testified she lived in Greenview and directly across the street from appellee, and that she knew Melton.
She was asked to state whether she had seen Melton go to appellee’s house and remain there after night and also whether Melton had not visited appellee at her home several times each week. The appellee objected to each of such questions and the court sustained the objection.
Mrs. Ed. Callaway was asked to state whether, since March, 1894, she had seen any acts of intimacy between plaintiff and Melton, but the court refused, upon the objection of appellee, to permit the witness to answer.
Counsel for appellant propounded following questions to Melton:
Q. I will ask you if, after this suit began, you did not go to her house the next night after this suit was instituted and stay all night ?
Plaintiff objected to the question; the court sustained the objection and defendant excepted.
Q. ■ I will ask you if you were not there a number of times from that or after this suit commenced, and stayed all night at her house?
Same objection by plaintiff; sustained by the court and exception taken.
Q. I will ask you if you did not, soon after this suit was brought, after she moved to Greenview, get on the cars going in the direction of Mason City, there-, at Greenview, at night, and after the cars had started, get off at the south side of the car, go up between some other cars and go up to her house ?
Plaintiff objected to the question; the court sustained the objection and defendant excepted.
Appellant offered to prove by the testimony of Walter Key that Tackelson, soon after the commencement of the suit on the 24th day of February, 1894, went to appellee’s house between eight and nine o’clock in the evening and remained in the house until about one o’clock at night, and that the witness saw Tackelson come from appellee’s house about midnight about the first day of March, 1894; that on the first of these occasions there was a light in the house when Tackelson went in but it was extinguished soon after; but the court, upon the objection of the appellee, ruled the testimony was incompetent and rejected it.
Joshua Donaldson, witness for appellant, testified he was at appellee’s house about the first of March, 1894, but the court ref used, upon the objection of the appellee, to allow the witness to state who was at the house; whether Tackelson was there; what time of night he saw Tackelson there, if he saw him at all; whether Tackelson’s horse was in the shed or barn at the place where appellee was living; whether the hoi’se was saddled or not; whether he saw Tackelson come to the shed or barn and get a horse, and if so where he came from. ■
The ground of appellee’s objections to all these questions, and of the action of the court in sustaining them, and holding the testimony inadmissible was, that it was not competent to prove acts of undue familiarity or even of adultery after the speaking of the words and after the beginning of the suit.
In this we think the court erred.
It would not, of course, be competent for a defendant to support a plea of justification by proof alone of acts occurring subsequently to the act imputed by the slanderous words.
Adultery may, however, be proven by proof of circumstance from which guilt may be readily inferred by a jury. Amer. & Eng. Ency. of Law, 2d Ed., Vol. 1, p. 752, and authorities cited in note 8.
When proof has been introduced designed to establish the guilt of certain parties of the charge of adultery within a certain period of time, and which tends to establish the same, then we think it is competent to introduce proof of subsequent acts of undue and improper intimacy, or of sexual intercourse between tbe same parties, as being explanatory of tbe criminating circumstances shown to have occurred Avithin the period of time in question and as characterizing such circumstances. Amer. & Eng. Ency. of Law, 2d Ed., Vol. 1, page 753, and note 8, and p. 754, and authorities cited in note 6.
There is some conflict of authorities upon the point, but we think the current is as we have stated. Ye accept and approve it as the proper rule at any event.
The decree of divorce granted appellee from her first husband, John Fleming, was not competent as evidence against the appellant. He was not party to it or bound by its recitals or findings.
The decree was offered in evidence over the objection of the appellant and held by the court to be competent.
It was not read to the jury but the court announced it was considered to be in evidence and counsel for appellee referred to it in the arguments and commented upon its contents.
This was error. For the reasons indicated the judgment « is reversed and the cause remanded.