44 Mich. 245 | Mich. | 1880
Greenwalt recovered for alleged criminal conversation with his wife. The suit was in the common form of an action on the case and was commenced in August, 1878. The trial took place in February, 1879. The whole
Egbert testified for himself and positively denied having had intercourse with her at any time. It was claimed for Greenwalt that the injury inflicted by his wife’s violation was aggravated by her being left pregnant; and the court overruled the defendant’s objections and permitted her to testify that her husband, in consequence of having fever and ague, did not sleep with her for some time prior to defendant’s connection with her, and had not slept with her since; that soon after the occurrence she discovered she was pregnant, and then informed her husband that the child wras defendant’s; that it was born the 23d of August, 1878. The plaintiff testified that he did not sleep with her for three months; that in the latter part of June, 1878, he noticed his wife’s situation, and she then confessed to him. But he had continued since to live and cohabit with her.
. The record contains a general exception to the court’s refusal to consider the evidence sufficient to bar the action. It is too vague to deserve notice. But as counsel adverted to it a few words may not be amiss. The point of the objection is understood as being that the nature of the action excluded the idea of violence and contemplated that the wife’s participation was voluntary and not forced, and that as the case made by the evidence negatived her consent and proved that she was debauched by violence, the action failed.
The position is not tenable. The common law, in giving this remedy, instead of making the husband’s right of action depend on his wife’s having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent but was overcome by force, and the action has been sustained just the same, whether as matter of fact her will concurred or she was outraged by actual violence.
In view of the rulings made on admitting evidence and in charging the jury it is unquestionable that the verdict must have been much influenced, if not determined,'by the statements tendered on the part of the plaintiff and his wife and received by the court for the purpose of causing the jury to believe that they had no sexual intercourse at the time the child was begotten, and that the wrongful act of the defendant must have been the occasion of her condition, and this evidence in my opinion was not admissible. The parties were living amicably under the same roof and there was no serious obstacle to intercourse. There was such access as gave opportunity. That is not denied, and as matter of fact it was not asserted that intercourse did not take place.
It is not perceived that the wife’s being admitted as a witness was objected to; and assuming, for this case, that she was entitled to be called, it does not follow that her personal knowledge of whatever in itself might be pertinent to the issue, was rendered provable by her if objected to. The difference is wide between the competency of one to be a witness in a given ease, and the right to use the witness to prove
According to an ancient rule of the common law the evidence of neither husband nor wife could be received to disprove the fact of sexual intercourse (Rex v. Book 1 Wils.. 340); and Lord Mansfield declared that it was “ founded in decency, morality, and policy ” (Goodright v. Moss Cowper 591); and no judge or author has ever dissented from his strong approval. The reason of the rule has prescribed limits to its application, but there is no present occasion for special reference to any of the qualifications. That the Legislature intended to abrogaté it is not to be assumed. No one will contend that the course of the legislation of 1861 was unfriendly to it, nor can it be fairly argued that the terms or spirit of the amendments then made have supplanted it. The-general purpose the Legislature had in view was to sweep-away a number of objections against the competency of witnesses, but not to break down any rule “ founded in decency,, morality, and policy;” and so far as ascertained, the courts,, wherever these general changes have taken place, have considered this rule of the common law as untouched. Tioga County v. South Creek Township 75 Penn. St. 436; Boykin v. Boykin 70 N. C. 262 ; Chamberlain v. People 23 N. Y. 88;. People v. Overseers of Ontario 15 Barb. 286 ; Hemmenway v. Towner 1 Allen 209; Stephens’ Ev. art. 98. The effect of the statute upon the capability of the wife as a witness, for the people in a prosecution against a person for having committed adultery with her, was fully discussed in Parsons v. People 21 Mich. 509; but it was not found necessary to-consider the present questions. I think the evidence of the plaintiff and his wife which was adduced to show non-inter
But let it be assumed that the evidence was lawfully before the court and jury, and then I think it was destitute of all force to prove non-intercourse, and that the court should have charged the jury to that effect. It was a maxim of the Homan law, and one which the common law copied, that the presumption is always in favor of legitimacy (Co. Litt. 126a) and that he is the father whom the marriage indicates (Co. Litt. 123; Domat pt. 1 b. 3, t. 6, § 5; and Montesquieu, alluding to it, observed that “ the wickedness of mankind makes it necessary for the laws to suppose them better than they really are. Thus we judge that every child conceived in wedlock is legitimate, the law having a confidence in the mother as if she were chastity itself.” Spirit of the Laws, B. 6, c. 17; and D’Aguesseau laid it down that “whilst the birth of children can be ascribed to a legitimate source, the law will not suppose criminality.” Greenleaf says that where the husband and wife cohabit together as such, and no impoteney is proved, the issue is conclusively presumed to be legitimate, though the wife is proved to have been at uhe same time guilty of infidelity. 1 Ev. § 28. The current of ; authority is in favor of qualifying this statement, and instead of regarding the presumption as conclusive, to require it to .apply with great force but subject to be overcome by admissible facts and circumstances of such cogency as to render belief necessary. Morris v. Davis 5 Cl. & Fin. 163 ; Wharton’s Ev. §§ 1298, 1299, 1300; Best’s Ev. (Wood’s ed.) 426, 464, 465; Stephen’s Ev. art. 98.
In the case of the Banbury Peerage the House of Lords dealt with the presumption and the degree of evidence necessary to overcome it, in this language: “ In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual
To overcome the presumption and disprove intercourse there must be cogent facts and circumstances : Head v. Head 1 Sim. & S. 150; Patterson v. Gaines 6 How. 550; in Stegall v. Stegall Chief Justice Marshall held that whilst it was not necessary to make out that connection was not possible, it was proper that the evidence should establish its non-occurrence beyond all reasonable doubt (2 Brock. 256); and the Supreme Court of Massachusetts applied the same rule in Sullivan v. Kelly 3 Allen 148. See also Phillips v. Allen 2 Allen 453 ; Hemmenway v. Towner supra.; Cross v. Cross 3 Paige 139.
Here, as already noticed, there was neither proof of inability nor of the certain want of opportunity, or even ¿he faintest approach to a denial of the fact, and the child was born only eight months after the alleged violence. The circumstances permitted the assignment of the paternity of the child to the plaintiff without any infringement of the statements sworn to, and the court should have told the jury, as I think, that there was no legal evidence that the plaintiff was not father of the child, and that it was their duty to consider that he was. Some other matters have been referred to, but as the hearing has been ex parte, no one having appeared to support the judgment, it is deemed best to dispose of the case without going further.