91 W. Va. 678 | W. Va. | 1922
Mary M. Sharp, plaintiff below, prosecutes this appeal from a decree entered on the 4th day of June, 1921, which dismissed her bill for divorce. The ground on which she sought divorce was adultery committed by her husband, Edgar I. Sharp, with Annie Lange, in an abandoned livery stable in the town of Marlinton on the 7th day of May, 1920. There is no other act of adultery on his part sought to be proven, and the whole ease turns upon the evidence of the offense committed on this one occasion. There is consider
The parties were married in 1892, and were each about forty-eight years of age, and resided within four miles of the town of Marlinton. Five children have been born to them, one had died, three of the others were married and had left home, and one, the youngest of the children, Icie, a girl of seventeen, remained with her parents. Considerable property had been accumulated by the industry and frugality of! each of the parties, and they owned one or two tracts of land„ the title to which was in the wife.
One ground of error asserted as cause for reversal of the decree was that neither suit money nor temporary alimony was awarded plaintiff, although she asked for both in the prayer of her bill. The record does not disclose that any motion was made for either, and neither could have been under consideration by the court until the final hearing was had, when the bill was dismissed for want of merit. There was no'refusal, nothing brought before the court for refusal, and the point is not well taken.
On the 7th of May, 1920, there was a traveling show in Marlinton, which the parties attended, together with their daughter, Icie, having ridden to the town on three horses which defendant placed in the old abandoned livery stable near the railroad, and known us the “McLaughlin Livery Barn. ’ ’ This barn was open, and had not been used by the
While the plaintiff and her sister, Mrs. Hebb, whom she had met in town, were standing near the burnt corner opposite the bank, she perceived her husband approaching rapidly from the direction of the stable and looking around as if on the watch for some person. He then went toward the river and as he turned the corner in the direction of Baxter’s garage he again stopped and looked around as if seeking some one. About the same time, Annie Lange, a woman of easy virtue and chastity, appeared, going in the-same direction. Plaintiff’s suspicions were excited, and she asked her sister to accompany her on investigation. They proceeded in the same direction, and finally came to the livery stable. No one appeared to be about. When they ■entered the building they heard the voices of a man and woman in conversation, followed by shuffling of feet and the ■creaking of springs on the cot which they located as immediately above their heads on the second floor. While they remained near the office and stairway, Annie Lange came down the stairs with a pocket book in her hand in which ■she was placing some paper money. She passed near the two women and out of the livery stable without saying anything. About the time she left the building, defendant came down the stairway, and the plaintiff says he was buttoning his pantaloons which were open at the top. He was immediately accosted by plaintiff, and accused of improper relations with the Lange woman. He denied the charge, and
If there was a division of the contents of the. quart bottle into two pint bottles and one of them placed in the currycomb box on the first floor, it must have been done after the time defendant says the Lange woman passed him at the head of the stairs. At that time the entire bulk of the colic medicine was up stairs, and if Sam treated his horse out of this medicine from a bottle which was in the currycomb box, it must have been subsequently placed on the first floor. Surely it was not placed there by defendant at the time he had the heated conversation with his wife when he came down the stairs. The Lange woman testified, corroborating the defendant in the main particulars. Her explanation of her presence is that she went to this abandoned stable and
It is argued that it would be unreasonable, on account of the location of this stable and this particular room, and the easy access of any one thereto, to presume that the defendant would meet this woman in that place for illicit purposes; and yet the Lange woman says that she went there to meet Fisher. It was sufficiently secluded and secret for her. It was the place she had selected to meet her friend. Defendant knew its seclusion perhaps better than any one, for he was a frequent user of the stable. He took his intoxicated friend there to escape public notice.
It is well established that adultery may be proved by circumstantial evidence, but the evidence must be clear and positive, showing opportunity as to time and place to commit the act, and a willingness on the part of 'the defendant. Pollock v. Pollock, 71 N. Y. 137. Acts of adultery are usually clandestine, and usually in such places as would reasonably preclude the possibility of discovery; the parties are rarely discovered in the direct act, and hence all of the circumstances should be carefully considered. Daily v. Daily, 64 Ill. 329, and Commonwealth v. Gray, 129 Mass. 474. “Adultery is peculiarly a crime of darkness and secrecy; parties are rarely surprised in it; and so it not only may, but ordinarily must, be established by circumstantial
Do the circumstances, reasonably considered, impel the .conclusion that adultery was committed by defendant with the Lange woman ? There can be no question that they were in the stable on the second floor nor can there be any question that they left the streets of the town and went there about the same time. Defendant’s explanation of his presence on the second floor for the purpose of dividing the horse colic medicine, taken together with that of his son who found a portion of it in the currycomb box on the first floor, is not very satisfactory. Defendant is flatly contradicted by Dr. Yeager with reference to procuring this medicine by prescription ; and the evidence of the druggist, although readily ■at hand, is not taken. It must be remembered that the plaintiff and her sister heard the voices of a man and a woman in the room above them, and defendant, if he was at the head of the stairs where he says he stood, could have more readily heard the same voices. The fact that no one •saw Fisher about the stable nor about the town and that no attempt was made to show that such a person existed, would lead us to draw the inference that no such man existed or if he in fact existed he was not in Marlinton on that day. It must be observed that when defendant was caught with •this woman of easy virtue under such compromising circumstances by his wife and her sister he made no explanation; ihe dismissed the charge by denying it and immediately left in a hurry. If there was an explanation of his presence on the second floor, and in near proximity to the room from which emanated suspicious sounds, then was the time for it. If the bottle of colic medicine was then hid in the barrel :at the head of the stairs and the other bottle in his pocket
Carefully considering the evidence with the circumstances; and explanations, we have come to the conclusion that there-is a preponderance of evidence in favor of the allegations in-the bill. We, therefore, reverse the decree of the circuit court entered on the 24th day of June, 1921, and grant the plaintiff a divorce from the bonds of matrimony as prayed for in the-bill; and the cause is remanded for such further proceedings, as may be necessary.
Reversed; Decree entered here; Cause remanded.