Evans v. Evans, No. 2,511

No. 2,511 | Cal. | Jul 1, 1871

Lead Opinion

By the Court, Crockett, J.:

This is an action by the wife for a divorce, on the ground of adultery, alleged to have been committed by the husband; and the judgment having been for the defendant, the plaintiff has appealed, assigning as error: First, the exclusion by the Court of certain declarations and admissions of the defendant, offered to be proved by the plaintiff on the trial; and second, that the judgment is not supported by the evidence.

The evidence which was excluded was of admissions of the defendant, that he had had adulterous intercourse with prostitutes. The eighth section of the Act of 1851, concerning divorces, which provides that a divorce shall not be granted on the confession or admission of the defendant, was intended to prevent collusive divorces, and requires other proof of the facts alleged, but does not prohibit such admissions from being given in evidence in connection with other proofs. Standing alone, and unsupported by other evidence, they would not be sufficient to authorize the divorce. Nevertheless, they are competent evidence, and are to be weighed in connection with the other proofs. This was the construction given to the statute in Baker v. Baker, 13 Cal. 87" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/baker-v-baker-5434088?utm_source=webapp" opinion_id="5434088">13 Cal. 87, and is, doubtless, the correct one. The Court, therefore, erred in excluding the evidence.

On the proofs in this cause I am at a loss to comprehend on what theory the Court could have arrived at the conclusion that the charge of adultery was not proven. It was shown by the testimony of a witness, who was neither contradicted or impeached, that on-one occasion the defendant entered a house of prostitution in Marysville, and was seen to emerge from it on the following morning. No explanation whatever was given or attempted by the defendant of the purpose of his visit to this house; and, in the absence of all proof to the contrary, the natural and reasonable presumption is that he went there for the purpose indicated by the character of the house. If the object of his visit and his conduct whilst there were innocent, the onus probandi was on him to show it. The mere fact that a married man enters a house of prostitution in the evening, and remains all night, raises so strong a presumption of adulterous intercourse as to require the most satisfactory evidence to rebut it. The act of adultery, like any other fact, may be established by circumstantial proof; and it would shock the moral sense of the community to hold that such proof as this, if unexplained, would not raise a strong presumption' of adulterous intercourse. This was the view of Lord Stowell, an eminent Judge in this class of cases. (See Loveden v. Loveden, 4 Eng. Eccl. B. 472.)

But, in addition to this proof, the plaintiff, who was examined as a witness on her own behalf, testified that on one occasion, just prior to her separation from her husband, she detected him in flagrante delictu—in the very act of adulterous intercourse—with one Mary Wall. There is no rebutting testimony whatever on this point. The said Mary Wall, though, called as a witness for the defense, was not examined in respect to the adulterous act testified' to by Mrs. Evans; and the defendant did not offer himself as a witness to contradict her. Her testimony on this point stands wholly uncontradicted and unimpeached. But it is said that by the second section of the Act of March 12th, 1870 (Stats. 1869-70, p. 291), it is provided that no divorce shall be granted on the testimony of either husband or wife, “ unless corroborated by other evidence;” and it is claimed that, in respect to this particular transaction, Mrs. Evans was not corroborated by other evidence. The statute does not define to what extent the corroboration must go. In the very nature of the case it would be impossible to lay down any general rule as to the degree of corroboration which will be requisite. Hence the statute only requires that there shall be some corroborating evidence; and there was sufficient evidence of that character in this case to satisfy the statute. The more than doubtful character of Mary Wall for chastity, the fact that for some years she was the sole female inmate of the defendant’s house, and the proclivity of the defendant to associate with women of that class, all tend strongly to fortify the testimony of Mrs. Evans in respect to this parti cular transaction. But without attempting a further analysis of the testimony, it will suffice to say, on this point, that if the act of adultery was not sufficiently proved in this case it will be in vain for injured wives to appeal to the Courts for a redress of this class of grievances. Bor did the. evidence establish that these offenses of the defendant had been condoned by the plaintiff' after she was aware of their existence.

Judgment reversed, and cause remanded for a new trial.

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Concurrence Opinion

Rhodes, C. J., concurring specially:

I concur in the judgment on the grounds discussed by Mr. Justice Crockett, except in respect to the corroboration of the plaintiff.

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Concurrence Opinion

Wallace, J., concurring specially:

I concur in the judgment on the first ground discussed; upon the others I express no opinion.