141 N.Y.S. 766 | N.Y. App. Div. | 1913
The complaint alleges the marriage of the parties at Putnam, 1ST. Y., on or about the 29th day of August, 1895, and that one daughter, fifteen years of age, has been born to them; that “ since the date of said marriage, and on or about the 16th day of October, 1912, at Putnam, Washington county, New York, the defendant committed adultery with one Thomas Anderson.” Upon information and belief, other acts of adultery are charged, but the learned justice before whom the case was tried has found the specific adultery as charged, and it is not necessary to consider the other allegations, no evidence having been introduced to support them.
If the interlocutory judgment in this case is sustained, it must be because it requires less evidence to support an alleged breach of the marriage contract than would be necessary in almost any other relation of life, for the facts brought out upon the trial do not arise to the dignity of proof, and are entirely consistent with innocence of the offense charged, though undoubtedly lacking in the element of discretion and good taste. The weight of evidence, which ordinarily is determined under our system by a jury in which temperamental considerations are largely balanced, depends so much upon the mental attitude of the individual called upon to try the issues of fact, that it is often important, in giving
It is easy to see from these questions, the most of which were answered substantially in the affirmative, the mental attitude of the court. Abstractly it will be assumed that they indicate the correct moral standard, but the question at issue is not one of abstract morals; it is one relating to a statutory offense, and the fact that the- corespondent at the time of the trial might be convinced that it was wrong for him to have acted as he did on this particular occasion has no tendency to prove that he committed a crime at the time alleged, and it is easy to conceive how he might, with the best of intentions, have done just what he says he did and no more than he says he did. Honest and honorable men have done indiscreet things in an effort to lessen the sum of human misery and they have been misjudged. Putnam is a small rural community. The defendant is seventeen years older than the corespondent. The latter was about eighteen years of age when she was married; they had always known each other, and, so far as appears, both the
„ As we understand the rule it is necessary not only that there should he the opportunity but that there should be evidence of a desire and purpose; there should be something in the conduct of the parties from which it may be properly inferred that, given the opportunity, they would indulge their passions, and it is important, therefore, to consider the evidence in relation to the previous conduct of these parties. The first witness called was the meddlesome neighbor, a woman who lived twenty or thirty rods from the defendant’s home. She testified that in the fall of 1910 she saw the defendant and the corespondent go into the plaintiff’s barn between the hours of eight
The next witness called in this effort to show the “inclina
The next witness called, a boy of sixteen, testified that some time in July, 1912, he was passing an open-fronted shed used by. the community as a tool house; that he heard some one speak, and that he walked to the entrance, lighted a match, and saw the defendant standing there looking at him. This was about ten o’clock in the evening. The witness says he did not speak; that Mrs. Graham did not speak. He is quite sure that no one else was present; that he could see all over the interior of the shed, and he says that he heard no one running away or moving, and that he at no time heard more than one voice, and that this was, he thought, a woman’s voice. What possible bearing this can have upon the defendant’s alleged adulterous purpose it is difficult to comprehend.
The next witness, and the only other witness who testifies in behalf of the plaintiff as to any act between the episode in 1910 and the alleged adultery in October, 1912, is George H. Sanders. This witness testifies that he lives in Fort Edward; that he recollects an occasion in the .fall of 1911, about September, being at Ticonderoga; that he saw Mrs. Graham there; that she was at her brother’s, and that Anderson was with her; that they left the brother’s at about nine o’clock in the evening; that no one else was with them; that the plaintiff was not there; that it was about fifteen miles from Ticonderoga to the residence of the plaintiff. On cross-examination this witness said he thought defendant’s father was present at the time Mrs. Graham was in Ticonderoga, and that he did not think there was anything wrong for these cousins to come there together; that he did not know whether her husband knew they were
Where, then, is the evidence to support this interlocutory judgment ? Where is the evidence which would justify the conclusion that Anderson or the defendant had any inclination to commit adultery ? Is it possible that these two people, looking for an opportunity to commit adultery, could so deport themselves in a small community that no one could be produced who would testify to some act of lustful import in all that time % From the fall of 1910 to the 16th day of October, 1912, no act inconsistent with the obligations of a wife are pointed out, though the parties were often together, and yet it has been found as a fact that on the 16th day of October, 1912, Mrs. Graham and the corespondent committed an act of adultery, though both of them deny this under oath, and no fact is disclosed in support of the decision except that the parties were together under circumstances which would have permitted of the act. Again we say, where is the evidence ? It all comes back to the testimony of Mr. Sanders, who tells of the remarkable occasion where the plaintiff, after eating supper and playing cards with Anderson, the defendant and the witness, suddenly discharged the corespondent and charged him with having debauched his wife. This witness says that at this time the plaintiff “ accused him [Anderson] of things that were in the .letters. I don’t know as I can remember it all. He asked her if she ever took an alcoholic bath. He claimed there was something of that kind in the letters; that he was going to be away, and he was glad, and he would come down and put her to bed and give her an alcohol bath.” The witness was then asked: “Did he state anything from the letters about arranging the curtains ? ” and answered: “To be there and have a signal in the window, whether it was curtains or light I don’t know.” At this point the court took up the examination and inquired who used those words. The witness replied: “ Mr. Graham claimed that that was in the letter; he stated to Anderson that was in the
The defendant admits that while she was a substitute mail carrier, and while Anderson was employed by her husband, and was engaged in carrying cream for the latter, she asked Anderson, whom she saw at home every night and morning, to write her letters and to drop them in some of the letter boxes along the road, and that she would find them and thus know what he was doing during the day; that she suggested this just for fun, and she apparently found a certain amount of diversion in looking through the boxes to find these missives. She admits that she thought the suggestion made in one of these in reference to giving her an alchoholic bath was not proper, but Anderson says it was made in connection with the fact that the defendant’s daughter bathed her arm every night after the trips carrying the mails, and that he had this in mind. It does not appear, however, that Anderson ever wrote any more letters after this particular one which the defendant thought improper, and the mere fact that a green country boy makes a vulgar suggestion, of
The interlocutory judgment appealed from should be reversed.
All concurred; Kellogg and Lyon, JJ., in result.
Interlocutory judgment reversed on law and facts and new trial granted, with costs to appellant to abide event, the particular finding of fact of which the court disapproves being that the defendant was guilty of adultery as charged in the complaint.