83 Ga. 283 | Ga. | 1889
This, at bottom, is a controversy between two ladies over property. These litigants may be distinguished by the lady Theresa and the lady Josie. The former claims alimony out of property which Jenkins, the disputed husband, conveyed to the latter in April, 1887, by deed founded on love and affection. The marriage of
Jenkins was a United States soldier in garrison on the island. In November, 1884, his time of service having expired, he came to Atlanta and located there, bringing Theresa with him. He resided in Atlanta nearly two years before separating from her. According to her testimony, she bore three children, two of whom are dead. Both upon the island and in Atlanta, according to some of the evidence, he recognized her as his wife, introduced her as such, and cohabited with her. After the separation he agreed to make her a small monthly allowance in money, which he paid to her for several months, and then discontinued the payment. She testified on the trial of'the present case to the fact of the marriage, and that the clergyman gave her a marriage certificate, which she kept until Jenkins took it away from her in Atlanta and burnt it up. She stated that while residing on the Island, she kept this certificate in a frame, hung up in her room where it could be seen and read. One of her witnesses testified that he had seen it and read it. Jenkins, in his testimony, denied that any marriage took place, or that there was any marriage certificate, or that he had destroyed it. In its last analysis the case resolved itself into a question of credibility of witnesses, the only two wit
The proceeding was for alimony only, as authorized by section 1747 of the code, and it was claimed in behalf of both the complainant and her child. The bill was filed in June, 1887. The jury allowed $15 per month, and made it a charge upon the property in controversy. A motion was made for a new trial, on the usual grounds, and because the court erred in charging the jury thus: “Circumstantial evidence is that which tends to prove the fact in question by the proof of other facts from which it may be inferred. If the fact to be proved were a marriage, an instance of direct testimony would consist in the sworn statement of a witness who was present at the marriage and observed the performance of the ceremony. An example of circumstantial evidence in a case of that kind would consist in such a set of facts surrounding the parties supposed to be man and wife in their relation to each other and. attendant upon their lives as that, from these facts, it could be reasonably inferred that a marriage had occurred.”
1. The evidence is voluminous, and every word of it has been carefully read and the whole carefully considered. The material circumstances, except the one fact of marriage in Atlanta with Josie shortly after ceasing to cohabit with Theresa, all tend to stipport and corroborate the testimony of Theresa. If her testimony was true, the verdict was undoubtedly correct.
2. Whether the court erred or not in defining circumstantial evidence, is easily seen by comparing the charge complained of with section 3748 of the code, which states that “ direct evidence is that which immediately
■ Some of these cases may go to the extent contended for; but Mr. Bishop’s summing up of the result (§446) is this : “ In general, and by the opinions of most judges, if, while three persons are living, two of them cohabit matrimonially, and then, separating, one of them and the third do the same, no marriage in either instance will be presumed from such mere cohabitation and repute. But if the actual fact of a marriage is proved as introducing either one of the cohabitations, it will not be invalidated by the evidence of the other.” That Bishop intends to draw a distinction between presuming a marriage from mere cohabitation and repute, and proving a marriage by circumstantial evidence, is plain from what he says in subsequent sections (§§485-
In another part of the charge they were instructed that “the burden of proof in this case is upon the complainant. What that means is, that it is for the complainant to satisfy you of a marriage between her and the .defendant, John B. Jenkins, and all the other facts essential to a recovery on her part, and not for the defendants to show to the contrary. The complainant carries this burden when she shows you that the greater weight of evidence is in her favor.” Again, “If you believe from
Judgment affirmed.