86 N.J. Eq. 346 | New York Court of Chancery | 1916
The petitioner charges his wife with adultery, alleged to have been committed with one Clement. She counter-charges, naming one Cassie Olden and a woman named Helen. The evidence does not sustain the cross-petition and it will be dismissed.
The parties were married September 2d, 1914, and after a short and unhappy existence, separated a year and two months later, under articles. One child was born to them. After the separation, the defendant, a young girl, with her infant, took up her residence at a boarding-house on Arch street, Philadelphia, and joined a theatrical company. Shortly afterwards she moved to a rooming-house, No. 109 North 19th street. On the morning of January 1st last, about three-ten, the petitioner, with three detectives, found her in her bedroom with the corespondent. She was undressed, except as to a night-gown and a kimono. Clement had his coat, collar, tie and shoes, or shoe off, and some of the witnesses say he was holding up-his pants. The folding-bed in the room was open and mussed.
Hpon the argument, counsel for the defendant urged that the view I took of the defendant’s conduct in the case of Cooper v. Cooper, 82 N. J. Eq. 581; affirmed, Ibid. 660, ought to influence and control me in the present ease. At a glance it will be seen that the circumstances are altogether different. In that case, it is true, Mrs. Cooper disregarded conventionalities to a marked degree, but the controlling factor of the decision was the entire absence of depravity in her make-up. This element, present or absent, is most important and potential in making for guilt or innocence. In the present case, we have a different sort of a woman to deal with. Her admitted derelictions speak strongly against her plea of innocence. The fact that she undressed in the presence of the co-respondent shows a reckless spirit, a disregard for decency and an utter lack of honor and sense of shame. Her conduct while living with her husband is also an indication of her moral code, and of her inclinations. A policeman testified that upon two occasions he saw her on the streets of Trenton after two o’clock in the morning, walking with a man of whom her husband was, undoubtedly, jealous; at one time linked arm in arm with him. The happenings may have been innocent, but they were left unexplained by the defendant. Hpon another occasion, after theatre, she flirted with a stranger, a soap salesman, and with him went to a hotel where they drank until one o’clock in the morning.
The ease made against the defendant, of course, is purely circumstantial, and if the facts can, in anywise, be reconciled with innocence, we must adopt that view. We ought not to move upon the outward appearance of things merely, for they ofttimes belie the truth, and we should mot judge and condemn even though they arouse profound suspicion. The circumstances must be such as to lead the guarded discretion of a reasonable and just mind to a satisfactory conviction that the crime has
Though the defendant be guilty, it is argued that the petitioner is not entitled to relief because of connivance at his wife’s crime. Of this, there is no proof whatever. The unholy alliance which sprung up between the co-respondent and the defendant, after her separation from her husband, and which has resulted in such dire- consequences to her, was in nowise contrived, invited m encouraged by the petitioner. It was solely the work of tin- defendant. Suspecting her infidelity, the petitioner set n watch upon his wife to obtain proof. While it was in the power of the petitioner to prevent the crime on New Year’s morning by intercepting his wife, he was not called upon to do s) by that duty 'of protection which is ordinarily required of a husband. He was. strictly within his rights in refraining; and culpability cannot be imputed to him for allowing his wife to avail herself of the opportunities she created for indulging her licentious desires. Warn v. Warn, 59 N. J. Eq. 642; Lehman v. Lehman, 78 N. J. Eq. 316.
But, it is insisted, that, even though he did not directly contrive the immediate offence of which his wife stands convicted, the petitioner is barred, because, while living in the marital state, his chief desire was his wife’s downfall, and by his whole course of conduct towards her contributed to that end. And, in this connection, it is contended that the separation agreement was the perfection of a scheme on his part to give her liberty and license and pave her way to ruin, which he conceived would be the culmination. That the petitioner fell far short in the discharge of his marital obligations; that the marriage ties were irksome and distasteful, and that he wanted to be rid of his wife; that his deportment and altitude towards her, and his
The infant is now in the custody of the mother of the defendant, a respectable and refined woman, as she appeared to be, from my observation, while on the witness-stand. The custody of the child will be awarded to the mother so long as it remains in the care of the grandmother, and the petitioner will be-compelled to provide for its support.