25 Kan. 69 | Kan. | 1881
The opinion of the court was delivered by
This action was brought by Jesse Ewing against S. L. Fullenwider, to recover damages for defendant’s alleged criminal conversation with plaintiff’s wife. A verdict was returned and judgment rendered in the district court for the plaintiff for $1,000. The defendant then brought the case to this court for review.
The plaintiff in error alleges in this court that the district court erred, first, in the instructions given to the jury on the trial; second, in refusing to give the instructions asked by him; third, in overruling his motion for a new trial; fourth, that the evidence does not sustain the verdict.
We shall examine these allegations or claims of the plaintiff' in error in their order.
II. The defendant requested the court below to charge the jury “that they were the exclusive judges of all questions of fact,” and “ that the burden of proof was upon the plaintiff to maintain the issues upon his side by a preponderance of the proof.” The court refused to give these instructions. They were certainly proper instructions in the case, and should have been given, unless the court substantially gave them in other instructions. We think, however, the court did substantially give them in its general charge, and therefore that it did not commit any material error in refusing them. It must be remembered also that only the substance of the general charge has been brought to this court; and it even takes a very liberal construction of the record to say that it affirmatively shows that even the substance of all the charge or of all the instructions of the court below to the jury has been brought jto this court. But supposing that all the charge and
III. Assuming that there was sufficient evidence to sustain the verdict of the jury, we would then say that the court below certainly did not err in overruling the defendant’s motion for a new trial.
IV. And we think there was clearly sufficient evidence to sustain the verdict. Either the defendant had carnal connection with the plaintiff’s wife, or Laura J. Ewing committed willful and corrupt perjury; and we cannot say from the evidence, and against the verdict of the jury, that she committed perjury, or even that she was mistaken. And it does not appear that the defendant denied having sexual intercourse with the plaintiff’s wife when he was charged with it by the defendant’s wife herself, in the presence of justice Everline.
The judgment of the court below will be affirmed.