191 Pa. 379 | Pa. | 1899
Opinion by
This is a proceeding for a divorce from the bond of matrimony, and each party to it accuses the other of adultery. The respondent demanded and obtained a trial by jury which resulted in a verdict and judgment in her favor and an appeal by the libellant to this Court. The question raised by the first specification of error is whether the learned court below erred in permitting the respondent to call and interrogate the libellant as if on cross-examination. It is stoutly maintained by the learned counsel for the libellant that there is no warrant in our statutes for such a proceeding. Perhaps there is no precedent for it in a divorce case, but if there is none it does not follow that the proceeding is unlawful or .unauthorized. A suit for a divorce is a civil proceeding, and if the respondent appears and defends either party may testify fully against the other: Act of May 23, 1887, sec. 5, clause e. In any civil proceeding a party to the record or a person for whose immediate benefit such proceeding is prosecuted or defended, or any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination. See section 7 of the act referred to in the preceding sentence. It seems to us that the parties being qualified to testify fully, against each other are clearly within the purview of section 7 of the act aforesaid. The libellant is demanding a dissolution of the marriage bond and the respondent is resisting it. Facts or circumstances relevant to the issue and within his knowledge may, if developed, defeat his purpose. In such case the concealment of them becomes essential to the success of his scheme, and he refrains
In considering the other specifications of error we must not overlook the fact that in the libel and bill of particulars belonging to it the libellant charges the respondent with having had, subsequent to their marriage, illicit intercourse with nine men whose names are specified therein, and with divers other men unknown to him; and that in the answer and bill of particulars pertaining to it, the respondent charges the libellant with having had, since said marriage, illicit intercourse- with twelve women whose names appear therein, and with divers other women unknown to her; that in addition to the charges made as above stated the respondent alleges that the libellant at divers times in the past ten years has introduced her into company to her unknown, “ and thereby undertaken to expose her to lewd company, and known to him to be such at the time,” and further that the libellant has had sexual intercourse with her in the months of Januaiy, Feb uary, March and May of 1895. If the respondent was found by the jury to be guilty of adultery, and either of the charges made against the libellant in her answer and bill of particulars was found by them to be true, the latter would prevail against the former and entitle the respondent to what she received, to wit: a verdict in her favor. That this is so, sufficiently appears in the 7th section of our act of March 13,1815, 6 Sm. L. 288, which is as follows: “ In any action or suit commenced in said court (the court of common pleas) for a divorce for the cause of adultery, if the defendant shall allege and prove that the plaintiff has been guilty of the like crime; • or has admitted the defendant into conjugal society or embraces after he or she knew of the criminal fact; or that the said plaintiff (if the husband) allowed of the wife’s prostitution, or received hire for them, or exposed his wife to lewd
The testimony in the case is quite voluminous, and naturally so, in view of the number and nature of the many questions of fact to be determined by it. There is evidence in the case applicable to each of these questions, and upon it it was the duty of the jury to decide them. No complaint is made respecting the instructions to the jury.
The second specification of error relates to the admission of a letter from J. H. Costello to F. H. McDonald, dated January 7, 1895. We are not convinced that the learned court below erred in admitting it. On the contrary, it seems to us that the rejection of it would have constituted error. Many letters of the same character were previously admitted without objection from libellant’s counsel. It is true that this fact does not amount to a demonstration that the letter of January 7, 1895, was relevant and competent. The relevancy and competency of the letter appeared in the relation of the parties to it and upon the face of it.
The third specification of error relates to the effort and failure of the respondent to secure the attendance of Helen Embody as a witness, and the fourth specification relates to the institution and speedy abandonment of a suit by Costello against Kench for alienating the affections of his wife. We do not discover in either of them any ground for reversing the judgment, nor do we find any error in the fifth specification. The sixth specification relates to the refusal of the court to grant a new trial, and the seventh to the action of the court in excusing two jurors, who were subpoenaed by the respondent, from sitting in the case. These specifications may be dismissed without comment. The eighth specification of error relates to certain questions put to the libellant by the respondent’s counsel, and promptly objected to by his counsel. The objection to each question was sustained by the court. The witness was not allowed to answer either of them, and the jury were instructed to disregard them. The matters embraced in the specification are not, therefore, cause for a reversal of the judgment. All the specifications are overruled.
Judgment affirmed.