43 Iowa 624 | Iowa | 1876
“ The fact (if you find it to be a fact from the evidence), that the defendant wrote the first letter introduced-in evidence by the plaintiff, and sent it or intended to send it to the plaintiff’s wife, A. L. Dance, tends to prove an improper and illegitimate intercourse between said A. L. Dance and the defendant.”
In giving this instruction we are of the opinion that the court erred. The objection to the instruction is that there is nothing in the evidence tending to connect Mrs. Dance with the letter. It is not necessary, to be sure, that it should appear that it was received by her. If it had been written in answer to an improper letter from her to him, or if she had shown in any way a desire for an improper correspondence, then, although this letter never reached her, she should be considered as a party to it. So on the other hand, although she had not invited the letter, s'till if she had retained it without taking any steps to express her disapproval of it, she should be considered as a party to it.
This brings us to the inquiry as to what was done in this case, and as to what should have been done, taking the facts to be as plaintiff claims them. It will be conceded that when a married woman receives an improper letter from a man, even though as in this case it contains nothing more than exaggerated expressions of affection and request for correspondence, it would be eminently proper for her to deliver the-letter to her husband. The plaintiff claims that his wife received an improper letter from the defendant, and the letter is in plaintiff’s possession. There is nothing in this circumstance, taken by itself, to implicate Mrs. Dance. If a man uninvited penetrates into the bed-room of his neighbor’s wife with libidinous intentions, and she immediately, if there, leaves the room or calls her husband, we cannot say that she is implicated by the circumstance. It is difficult, of course, to look at the letter as written by'defendant to Mrs. Dance without assuming that she had invited it, but assumption must not be substituted for proof. It may be claimed indeed that she
IY. A day or two after the occurrence which Lahman witnessed in Mrs. Dance’s bed-room, he walked with her on one of the streets of Missouri Yalley and made the occurrence a subject of conversation with her. The plaintiff’s counsel asked him to relate the conversation to the jury. The defendant’s counsel objected, on the ground that her statements about the occurrence made a day or two afterwards could not be admitted to characterize it as a part of the res gestae, and that otherwise the evidence was hearsay. The court overruled the objection, and allowed the witness to relate the conversation. What the record shows of it is brief and apparently fragmentary. It does not amount to much. The substance of it is, so far as Mrs. Dance said anything, that she could not afford to break with the defendant because a certain woman was trying to get her out of the church choir, and defendant had influence enough to keep her in. We infer that the witness was advising her to break with him. The connection between this and the occurence is not fully disclosed, but the witness says that he referred to it. We are not certain that the defendant was prejudiced by the testimony. If this were all the error complained of, we might not regard the case reversible upon this ground, but we must hold that the testimony was improperly admitted.
Eeversed.