66 Wis. 644 | Wis. | 1886
The character and weight of the testimony required to support a finding or verdict of guilty on an issue of adultery in an action for divorce has been somewhat discussed in several cases in this court. In Pryce v. Security Ins. Co. 29 Wis. 270, Dixon, C. J., cites cases in the opinion, with apparent approval, holding that the same degree of proof is required to sustain a charge of adultery in a divorce suit as would be required to secure a conviction on an indictment for the same offense. That action was on a policy of insurance, and the issue was whether the plaintiff had, as charged in the answer, wilfully and fraudulently burned the insured building. The opinion does not determine the rule of evidence in such a case, for the reason that there was an entire want of evidence tending to show that the insured party burned the building. Both before and after that case was decided this court held that in such an issue the rule which prevails in other civil actions is applicable, and hence that a preponderance of evidence, although it falls short of proving the fact beyond a reasonable doubt, is sufficient to support a verdict against, the insured, although in effect it convicts him of a crime. Washington Union Ins. Co. v. Wilson, 7 Wis. 169; Blaeser v. Milwaukee M. M. Ins. Co. 37 Wis. 31. See, also, Wright v. Hardy, 22
Is an issue of adultery in a divorce suit an exception to the above rule? If so, what is the rule of evidence on such an issue? It has already been stated that these questions were not determined in Pryce v. Security Ins. Co. supra, whatever may be the drift of the opinion, or the intimations therein.
Freeman v. Freeman, 31 Wis. 235, like the present case, was an action by the wife for a divorce. The husband recriminated, alleging adultery by the wife. The issue of adultery was tried by the court (a jury having been waived) and resulted in a finding sustaining the charge and a judgment granting the husband a divorce. On appeal, this court reversed such finding and judgment, because the charge of adultery' appeared “to have been entirely unfounded, and to have been brought forward without the discovery or proof of any facts sufficient to justify a general suspicion, or even a well-grounded suspicion of any kind, of its truth.” Applying to that case the ordinary rule in civil actions, the finding should have been that the charge of adultery was not proved; for certainly there was no preponderance of proof sustaining it. Hence it was not necessary to determine the rule of evidence in such cases. The rule is, however, discussed at some length in the opinion by Dixon, C. J., and many of the cases bearing upon it are cited and commented upon. Undoubtedly the opinion in that case favors the.application, to cases like this, of the same rule of evidence which prevails in trials on indict
This review of the cases in this court in which the question under consideration has been discussed, will show, we think, that the rule of evidence which ought to prevail in this case has' not been settled and established by such adjudications. For the first time we have now before us a case in which it is necessary to declare the rule.
We are quite unable to perceive any difference in principle between an issue of adultery in a divorce suit, and issues in many civil actions involving charges of other crimes. The consequences of a finding that the crime has been committed may be just as disastrous in the one case as in the other,— may even be more disastrous in the latter class of cases than in the former case. That must depend greatly, not only upon the heinousness of the crime, but upon the standing, situation, and circumstances of the party charged therewith.
The rule as to the strength and quality of testimony required to justify a finding of guilt, when the issue in a civil action involves a charge of crime other than adultery, having been established by repeated judgments of this court, we have concluded, after much deliberation, that the same rule should obtain when adultery is charged in, an action for a divorce. That rule is that the issue should be determined by the clear and satisfactory preponderance of the evidence. The jury in such a case should be so instructed, but not that the crime must be proved beyond a reasonable doubt before they can properly find it has been committed.
These views are amply sustained by high authority. In 1 Greenl. on Ev. sec. 13a, note a (14th ed. 1883), it is said: “ There seems to be at the present time no exception in the United States to the two rules (1) that in criminal cases the jury must be satisfied beyond a reasonable doubt by the proof, and (2) that in civil cases they may decide upon the mere preponderance of evidence. The rule that when a criminal act is alleged in a civil suit the proof of the criminal act must satisfy the jury beyond a reasonable doubt, has now been abandoned in most states, and the same rule applied to these as to other civil cases.” Many cases are there cited to support the proposition.
In a very late case decided by the court of appeals in New York (Allen v. Allen, 101 N. Y. 658) the same rule is laid down. The action was for a divorce, and the issue tipon a charge of adultery. The court say: “We under
The learned circuit judge charged the jury in the present case, in a variety of forms, that the rule in criminal cases prevailed, and that the issue could not properly be found against the plaintiff unless her alleged adultery was proved beyond a reasonable doubt. The whole .charge is based on that proposition. This was error.
The judge also instructed the jury that the testimony of a female witness who had testified directly to acts of adultery by the plaintiff, and who admitted that she had served a term in the state prison on a conviction for a like crime, was not sufficient in law to sustain the charge against the plaintiff, but, uncorroborated, was utterly insufficient to sustain it. This, also, was error. The court might properly have cautioned the jury to scan such testimony closely and
It is claimed that, because the case is one in equity, the verdict of the jury is merely advisory, and hence, because the court was satisfied with the verdict, the order denying a new trial should not be disturbed, even though errors were committed on the trial. It is not quite accurate to say that the verdict on this issue is merely advisory. Unlike most other equitable issues, it must be tried by a jury, unless a jury trial thereof is waived by the parties. R. S. sec. 2843. Hence, in the absence of such waiver, the court cannot give judgment thereon until the fact is found by the jury. In most other equity cases wherein a verdict is taken on an issue of fact, the court may, if the testimony is sufficient, set aside the verdict and find the facts differently, and judgment may be entered on such findings. But, if the court set aside the verdict on an issue of adultery, a new trial must be ordered. Such being the law, it seems clear enough that, if material error be committed on the trial of an issue like this, the verdict should be set aside; otherwise the injured party is without remedy. If, upon the whole case, it appears that, although errors have intervened, the verdict is manifestly right, and that in all reasonable probar-bility a new trial would result in the same verdict, then the court may well say that the errors alleged are immaterial, because not prejudicial to the rights of the complaining party.
In this case the errors were substantial, going to the merits of the issue, and we cannot say that they did not affect the verdict, or that the verdict is • manifestly right. Upon principle, and in accordance with all the authorities, for. such errors a new trial should be granted.
It is unnecessary to determine whether the defendant
By the Gourt. — ■ The order is reversed, and the cause will be remanded with directions to the circuit court to set aside the verdict and grant a new trial.