31 Ga. 625 | Ga. | 1860
By the Court. —
delivering the opinion.
This was a libel for divorce, filed by Jane Gholston, against James S. Gholston, for a divorce, a vinculo matrimonii, upon the ground of cruel treatment. At the March Term, i860, of the Superior Court of Madison countyj the cause came on for trial, and a.verdict was returned granting a total divorce between the parties, and providing for division of the property between them.
A motion for a new trial was made by counsel for defendant, on sundry grounds, which will hereafter be considered. After argument, the Court below refused the rule absolute for a new trial, and plaintiff’s counsel excepted, insisting on
It is erroneous to say that the law gives the defendant, in a libel for divorce, an appeal, as a matter of course. An appeal annuls the verdict from which it is taken, unless the appeal be dismissed by consent, or on motion for irregularity, the verdict goes for naught — accomplishes nothing. But the Constitution provides, that “divorces shall be final and conclusive, when the parties shall have obtained the concurrent verdicts of two special juries, authorizing,” etc. The first is as necessary to effectuate the divorce as the second. If there be any irregularity in the obtainment of the first, it is as important to the defendant that it be corrected, as a like irregularity in the second. The obtainment of the first verdict is an advance made, a position gained by the libellant; it is half the work accomplished. If illegally rendered, it ought to be set aside; but this can only be done by a motion made during the Term at which the verdict was rendered. We hold that the Court committed no error in overruling the motion to dismiss the rule nisi.
Defendant rejoined, that the objections had been written out upon the envelopes to the commissions severally, before the cause was submitted to the jury, and must have been seen by plaintiff or her counsel.
The exception taken to the overruling of the second ground in the motion 'for a new trial, is divested of all force by the explanation of the Court below appearing in the record, and therefore will not be considered.
We overrule all the exceptions from the 3d to the 8th inclusive, holding, that, on all the points therein made, the Court gave the law in charge to the jury.
“Gíntuímín oí thí Jury :
“We have arrived at the end of the investigation of this case, which has been necessarily long, tedious and complicated. During the whole of it, I have endeavored, to the best of my ability, to hold the scales of justice evenly between the parties, and to give to each the amplest opportunity to lay their respective cases before you in the manner most satisfactory to themselves. Whether I have done this or not, is subject to review by a higher tribunal. No mistake of mine can by any possibility injure either of these parties. The evidence and the points decided all exist in writing; and this charge is put in writing in order that either party must have a correct statement of his grievance, if he chooses to appeal to that tribunal. And this reminds me to state to you right here, that while you alone can judge of the facts — while you alone can say what is true or what is false, you are bound by law to take the law from the Court; you are bound not to disregard the law as given you in charge by the Court, but you ought honestly and independently to enforce it according to the evidence. The reason and plain necessity for this obligation on your part will be seen 'at once, when I remind you that while it is true that no mistake of mine can injure the parties, because my judgments can be revised and corrected, it is equally true that the parties have no remedy against any mistake of yours in matters of law. No writ of error or bill of exceptions lies against you to the Supreme Court. If you, therefore, refuse to take the law
“On the trial of a defendant for an assault, or assault and battery, opprobrious words or abusive language, may amount to justification; and if the defendant were on trial for whipping his wife, the question would arise, whether this provision of the law applied to the case of. a man whipping his wife? But such a question does not arise in this. case. When a woman sues her husband for divorce on the ground of cow-hiding or whipping her, he can not justify himself by showing opprobrious or abusive language on her part, because it is not like conduit, in the language of the law. Abusive or insulting language ■ by a woman to her husband is not like conduct with cowhiding or whipping the wife by the husband. But opprobrious and abusive language, when used by the wife to the husband, outrages the feelings of modesty and decency as much as when used by the husband to the wife. Now, do you believe, from the evidence, she did this, or was guilty of conduct similar? - If she did, she is not entitled to a divorce, either total or partial, on the ground of his cursing or abusing her, or threatening or attempting to commit adultery; for it would all be like conductJ as the law terms it, both tending alike to hurt and wound the feelings.
“Now, therefore, you will inquire, did he outrage her feelings as she complains? Next, did she outrage his as he complains? Is he guilty, and she not guilty, in this respect? If so, she ought to have a divorce. Are they both guilty, or she more guilty than he in the matter of insulting and wounding each other’s feelings? If so, you ought not to grant a divorce.
“Now, passing from this, you will inquire from the whole evidence, do you believe he cowhided her? If he did, she is entitled to a divorce on that ground alone, no evidence being-brought before you of like conduct to that on her part. Though I have charged you that abusing and insulting him is not like conduct with cowhiding her, and can not be considered by you as a ground for refusing a divorce, if you believe he cowhided her; yet, it may, and, if • true, ought to
“With regard to the contrary and conflicting evidence introduced here, if you believe it to be contrary and conflicting, you must weigh it all, and the circumstances surrounding it, and decide according to the preponderance of evidence. This being a civil case, you are to decide according to the preponderance of evidence, and need not believe, beyond a reasonable doubt, any fact in order to find it true.
“You must also bear in mind the difference between positive and negative evidence. When a witness says he saw a thing, that is positive evidence; when a witness says he did not see a thing, that is negative evidence. Now, when both witnesses are equally credible, and otherwise equally reliable, the positive evidence ought to prevail over the negative, and especially when the witness who testified negatively, not only that he did not see the thing, but also that he did not look for it.
“The defendant’s answer has been read before you, and you have heard his statements on his side of the case. To put in this answer and to read it to you was his clear right, for the law says: The defendant’s answer or defensive allegation in writing may extenuate, deny or contain as much matter, or as many circumstances in his defence, as he may think necessary and proper therein. But you must remember, this answer is not evidence, and must not be regarded by you only so far as it is sustained and proved by the evidence. You must look to the evidence, and the evidence alone, to decide how far you will find the answer true.
“With regard to the manner in which you will dispose of the property contained in the plaintiff’s schedule, you will first inquire how far that schedule is sustained by the evidence? Did the defendant own the property contained in the schedule? Does'he own it now? What is it worth? How much of it did he get by his marriage with the plaintiff?
“If you find and decree a conditional and partial divorce, you will still have to decide what separate maintenance and support you will allow to the wife. In this case — that is to say, in case of a conditional or partial divorce, the law says, the jury, by their verdict or decree, shall make provision out of the property of which the husband may be possessed for such maintenance and support. The manner in which you shall do this, the law leaves entirely at your discretion. You may do this by giving her a portion of the property as her own, to do with as she pleases, you may do it by giving a portion to support her during life, or you may do it by decreeing that the defendant shall pay to some officer, as the clerk of the Court, or to some trustee to be appointed, a monthly, or quarterly, or annual allowance in 'money for such support or maintenance.” •
We think it better that judges, in charging juries, should abstain from saying to them, that there is, or is not, evidence in the case of this or that fact. But seeing nothing in this case proving directly, or raising the presumption of such consent, we would not, for that cause, send this case back.
This conduct of the sheriff was a gross and flagrant violation of his official duty. And, moreover, it can not be lightly regarded, in- considering the validity of the verdict. It is an inflexible rule of law, that after a jury shall have been charged with a cause, having had the law and the evidence placed before them, by or under the supervision and direction of the Court, all communication between them and the rest of mankind shall be suspended, except by permission of the Court, until they shall have been discharged from the case. It is of the last importance that this rule be rigidly enforced, to the end that the administration of justice may be both pure and free from the suspicion of impurity. The ascertainment that some unauthorized communication had been had with the jury, the nature and purport of which was unknown, ought to vitiate a verdict. How much more a known communication, calculated to intimidate jurors, to unsettle resolution, based upon fixed and well considered opinion — to produce a conflict between a sense of duty and personal comfort, convenience or interest. Here were men withdrawn
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, on the ground that there was an improper and illegal interference with the deliberations of the jury, after the Court had charged them in the case, by unauthorized communication with them of the sheriff of the county, and that the Court erred in not setting aside the verdict upon the thirteenth and last ground of defendant’s motion for a new trial.