Frank v. Berry

May 4, 1905

Reporters:: ,
Before:: Ladd

Ladd, J.

Plaintiff became the husband of Mrs. Atwood December 25, 1900, and claims to- have lived happily with her until in 1902, when her’ attitude toward him changed, and, after two temporary separations, he left her in .September, 1903. ‘lie attributed all his troubles to interference on the part of defendant.

3‘. Proof of handwriting: competency of witness. I. Plaintiff recognized nine letters addressed to his wife, and the photograph of another, as being in the handwriting of defendant. These were received in evidence, over «Tir.-m-n SJlOWIl. objection that his competency had not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍been As he had seen the defendant write a receipt and sign his name in a subscription book, the ruling was correct. Hyde v. Woolfolk, 1 Iowa, 159; State v. Farrington, 90 Iowa, 673; State v. Hall (S. D.), 91 N. W. Rep. 325, 65 L. R. A. 151; Elliott on Evidence, section 1100; Greenleaf on Evidence (15th Ed.), section 5111 Eogers on Expert Testimony (2d Ed.), section 122. The fact that the witness was not an expert and had enjoyed little business experience went to the weight to be given his testimony rather than to its admissibility.

5. Secondary evidence: objection. II. When the photograph of a letter was offered and admitted, objection that it was secondary evidence was not urged. The letter appears in the abstract, and is followed by the statement: “ Counsel for plaintiff now reads photographed letter marked ‘ Exhibit No. 10.’ ” Thereafter the defendant first raised the above objection, and it was overruled. This was not error, as the photograph was then before the jury, and could not.properly have.been excluded save on a motion to strike.

*2256. admissibility, v III. In one of these letters the writer informed plaintiff’s wife ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that he had procured a box with a key to it, No. 490, and cautioned her to remember the number. The postmaster testified that a man of defendant’s name rented a box, being that number at the post office, some time during the same month. As they were corresponding, and he asked in the letter containing the statement that she write, the postmaster’s evidence was admissible.

*“ handwriting, IV. The signature of Charles E. Berry attached to the answer was admitted in evidence, over objection, as a standard of comparison with the handwriting of the letters. The statute requires every pleading to be subscribed ky the party or his attorney (section 3580, Code), and the.court had the right to assume, in the absence of any showing to the contrary, that defendant, in filing his answer purporting to be signed by himself, had complied with the law. Filing such an answer was an as-section that the signature was genuine, and it was rightly received in evidence. See State v. Farrington, 90 Iowa, 673.

7.evidence support of family. V. Plaintiff was allowed, over defendant’s objection, to testify that he had $600 when ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍married, and that during the 2y2 years he had lived with his wife he had expended all save $40 in support of his family, of which fact she had knowledge. The evidence was not very material, but had some tendency to show that he had cared for her properly. On the other hand, the inference was open that the separation may have resulted because of the exhaustion of plaintiff’s funds rather than the interference of defendant. On these grounds its admission may be sustained.

*226l. alienation aetectiokts : mitigation. *225VI. The jury was instructed not to consider the evidence of plaintiff’s wife’s bad character prior to her marriage. Such evidence could have been received only in mitigation of damages. Conway v. Nicol, 34, Iowa, 533. And, under our Code, mitigating circumstances, to be provable, must be *226specially pleaded (Herriman v. Layman, 118 Iowa, 590), that is they must be pleaded as such. A mere general allegation, as in defendant’s answer, was n0£ en0Ug]lj and did not put her previous character in issue. The instruction was correct. On this ground, if for no other, the evidence of Marks that the wife ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍had been accused four years before (prior to her marriage) of robbing a man was properly stricken.

8. previous un chastity: cojiniVancc °f proof. VII. In his answer defendant pleaded that the wife had been a prostitute both before and after her marriage, and that plaintiff so knew and connived in what she did, but this issue was not submitted to the jury. If no evidence was introduced tending to support the issue, omission to submit it was not error. Van Vechten v. Smith, 59 Iowa, 173; Kimball v. Monarch Ins. Co., 70 Iowa, 513. To sustain this defense, knowledge on the husband’s part and consent thereto were both essential. Stumm v. Hummel, 39 Iowa, 478. The evidence failed to show either. That his suspicions were aroused must be conceded, but his request of a policeman to keep watch of her indicated objection rather than consent. TIis objections to her frequent trips downtown, which she did not satisfactorily explain, and to her association with a certain woman, cannot be construed into assent to her course. He knew nothing of the source of the money carried in her stocking. In so ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍far as he was shown to have been aware of his wife’s misconduct, it was without his approval. He was not bound to keep guard over her, and yet had the right to watch her if he suspected her of infidelity, and even to leave opportunities open, provided he created none nor in any way invited evildoing. This was as far as he went, and was not sufficient to justify the inference that he had connived at or assented to her misconduct.

The record is without prejudicial error, and the judgment is affirmed.