30 Ga. 891 | Ga. | 1860
By the Court.
delivering the opinion.
We avoid expressing- any opinion as to the size of this verdict, except to say, that according to the actual facts of the case as'proven, it was an unmistakable compliment to the rare abilities of the plaintiff’s counsel.
As we feel constrained to avoid a new trial, it becomes unnecessary to notice the ground on the motion for a new trial as to the witness L. W. Biggers.
We shall confine ourselves to the refusal of the Court to give the charge requested in writing by defendant’s counsel, for the reason that there was no evidence to warrant it. The request was in these words: “ It is not always necessary that the husband be proved to have connived at the particular
It is not denied either by the Circuit Court, or the counsel in argument, but the law is correctly stated. Indeed, it is a verbatim transcript from the 51st sec. of Qreenleaf in Evidence; and marked in the request as a quotation. I beg leave to add several additional paragraphs from the same author: “Passive sufferance, or connivance of the husband, may also be shown, in bar both of a libel for divorce and a civil action.” Again, “ it is not necessary to show connivance at actual adultery, any more than it is necessary to prove an actual and specific act of adultery.”
We ask, was there not some evidence enough to justify the request made, from which the jury might have inferred, to say the least of it, “passive sufferance” of the husband in the adultery of his wife?
What is some of the testimony in this record ?
Joseph Dent swears that he knew Wood and wife in Muscogee county, before their removal to Harris; that Mrs. Wood’s character, for chastity, was bad. He had a conversation with Wood, her husband, in Muscogee. He spoke of his wife as a whore. He abused her and her sister, Mrs. Clem; and said he believed that they, and all the family, were d'-d whores. This was in 1850, or 1851. Mrs. Wood was frequently with her sister, Mrs. Clem. Wood knew they associated together, and told Dent on one occasion, when he met him, that his wife had come down with him, and gone to Columbus. Wood asked Dent on one occasion, if he ever had sexual intercourse with his wife. Wood said he believed Ed.'Nance had. He told witness on another occasion, that when he first went to Harris county, he could not borrow five dollars from Cook, and he thought he was a mean man; but that afterwards his wife could get as much money from Cook as she wanted; and he (Wood) thought he was a very fine man. At another time, when Wood and his wife had had a difficulty, she threatened to take the children and become a public prostitute.
Thomas Gr. Moore testified, that Wood said to him, that he believed that when Clem’s wife was out of fix, his (Wood’s) wife was sent down for Dames’ benefit; and when his wife
John Moore swore, positively, to one act of illicit intercourse between Mrs. Wood and a man by the name of Tomlinson, of which he was an eye witness.
But I forbear any further recital of these disgusting details. These ai’e sufficient. True, I have selected some of the strongest evidence against the plaintiff, and this is right, as the point is, was there any evidence to justify the charge asked by defendant’s counsel ? And when it is recollected that Mrs. Wood associated intimately with Mrs. Clem, a woman of notoriously infamous character, that her husband doubted, yea, disbelieved the legitimacy of his ostensable progeny. That he continued to live with his wife for a number of years on Cook’s land, knowing, and well pleased with the fact, that she was supplied abundantly with money by him; and that he was willing to compound for the adultery, by a settlement of property upon himself and one child, might not the jury properly have inferred that the plaintiff connived at his own undoing?
It is said that we, as an Appellate Court, cannot weigh and appreciate the testimony as the Judge who presided at the trial could. And the same suggestion is frequently made, and no doubt there is some truth in it. All we have to say in response to this remark is, that the corrective is with the Legislature. Instead of compelling us to recover the judgment of the Circuit Judge upon the evidence, let his decision be final upon the facts. It would greatly relieve the labors as well as the responsibility of this Court; and perhaps might better subserve the ends of justice.
In this case, an expression of opinion upon the evidence, would have been forced upon the reviewing tribunal, under any circumstances, as the Judge refused to give a legal charge, for the reason that there was no evidence to support it.
This is the first action of crim. con. that has been before us. We trust it will be the last — especially when the factum of the adultery is proven by one witness only, and that witness the son of the fallen woman ; and thus, instead of keeping the discovery he made, locked up in the secret cham
Were this the case of the two men in one city — the one rich and the other poor. The rich man had exceeding many flocks and herds, but the poor man had nothing save one little ewe lamb, which he had bought and nourished up, and it grew up together with him and with his children. It did eat of his own meat and drank of his own cup, and lay in his bosom, and was unto him as a daughter. And there came a traveler unto the rich man, and he spared to take of his own flock, and of his own herd, to dress for the wayfaring man that was come unto him, but took the poor man’s lamb and dressed it for the man that was come to him. I say were this that case, the wrath of every right-minded man would be exceedingly kindled. And his verdict would be, that all the wealth of Elijah Cook could not compensate the husband for this contamination of his wife. But if there is any reliance to be put in the testimony sent up in this record, this is not that case.
