86 Md. 519 | Md. | 1898
delivered the opinion of the Court.
The original bill, which was filed in this case June 9th, 1896, relied on cruelty and abandonment as the grounds for the divorce sought at that time, and prayed for an allowance of alimony. The Court had passed an order requiring the appellee to pay alimony pendente lite and counsel fees, and had set the cause for hearing when the appellant filed an amended bill, in which she charged the defendant with adultery. It is alleged that oh the 1 ith and 13th days of September, 1895, he committed adultery wdth a certain woman named in the bill, whom we will speak of as the corespondent, although not technically such, in a house on 13th street, in the city of Washington, and that since the autumn of the year 1895 subsequently to the desertion of the complainant, the defendant has lived with this woman in his house in Montgomery County, Maryland, and in said house had on repeated occasions, the exact dates being unknown to the complainant, committed adultery with her. An answer was filed by the defendant denying the charges, and testimony was taken. The bill having been dismissed, this appeal was taken.
Under our view of the case, it will be unnecessary to refer to the charges of desertion and cruelty, excepting so far as they may reflect upon the other question. The complainant and defendant were married September 4th, 1895,
These parties were so situated that it would be very difficult to establish by direct evidence many acts of intimacy or misconduct, as there was little opportunity for any one to witness them if they occurred.- A servant who lived there in 1893, swore that she saw the defendant kiss this girl in
What we have spoken of occurred prior to the marriage of the plaintiff, and is only relied on to show the relation between them at that time. Mrs. Shufeldt arrived at Takoma Park on September 5th, 1895, and just before her arrival the co-respondent left the defendant’s house. On the evening of the 9th of that month the defendant met this girl at the corner of Lafayette Square by appointment—she having, as she says, some presents for the children. On the 12th instant, he wrote her a letter, although he was suffering greatly at the time from a fall. In it were such expressions as “ be a very good girl and try hard to find a nice home ; ” “as soon as I get to town again, I’ll try and help you secure a good home. You are a very, very deserving girl, and ought to have the best of one. If your pocketbook gets a little low, write the doctor, and I’ll come in and help you and try to cheer you up,” “ believe me, Alphild, every your old friend, the doctor, etc.” The next day, according to his and her testimony, he went to the residence of Mr. Scharf, in Washington City, where she was then employed as a domestic, went to the side door, and inquired for her— after asking permission of Mr. Scharf. He gave her a letter he had for her, and asked her if she could not walk up the street with him. She got permission from Mr. Scharf, whose wife was out, put on her hat and joined him at the corner of 14th and Princeton streets, and they walked about five blocks to the junction of the car line he was to take home, where he says he left her. She says she met him again on the 20th of September, and admitted that she received six or seven letters from him, and saw him “about three times” during the month she was at Mr. Scharf’s—that she always met him opposite the club, of which he is a member. He ad
The testimony of Mrs. Gladstone is sufficient to establish the charge in the bill if it be accepted as true. She swore that she saw the defendant and this girl go into a house of ill-repute in Washington on September i ith, 20th and 22nd. A good deal of testimony was taken to show that the corespondent was not at Mrs. Scharf’s on the 11 th, and that she did not go there until the 13th. But that is a very immaterial error, as the evidence shows conclusively, and the defendant himself admits it, that he did not call at Mrs. Scharf’s on the 13th, and that this girl did join him and go up 14th street with him. We have already given his explanation of that. This witness swore that they got on a 14th street car, went to 15 th street where they got off, and then went to the house on 13th street, which she said they entered—that she suspected her, and went unobserved on the-«ame car they took to 15th street. It is true that the defendant has endeavored to show by Mrs. Scharf that this could not be, as the co-respondent was there when she returned from a drive, but it does not necessarily follow from that that she is mistaken, as Mrs. Scharf testified she was out driving between four and six o’clock on that evening, and Mrs. Gladstone and the girl both swore it was about
It not necessary in cases of this character that there be any one act proven which is conclusive of guilt, but the Court mnst consider the opportunity for the commission of the act, the conduct of the parties and all circumstances, and then determine from the whole testimony whether it should convince unprejudiced and cautious persons of the guilt of the parties. If it be true that prior to the marriage they were seen to kiss each other, as described by two witnesses, and that only one of the two beds in the communicating rooms used by them was occupied the night before the fire, those facts, together with others we have referred to, are evidence of such convincing character, that there can be no escape from the conclusion that there was illicit intercourse between them at that time. If that be accepted as proven, which we must do, noth withstanding the denial
It is not necessary to discuss the exceptions to the testimony. We may say, however, that those of the defendant cannot be sustained, because they are too general. Some of the testimony of every witness excepted to was relevant and material, and therefore, cannot be excluded by such general exceptions, unless it be the testimony of Mr. Mun-roe, which we have not taken into consideration, as we think it wholly immaterial what the entry in Mrs. Scharf’s book was. What we have said as to the witnesses, applies to the documentary evidence, as some of the letters are relevant, and material, and hence all cannot be excluded.
The decree will be reversed, and the cause remanded, so that a decree granting a divorce a vinculo matrimonii to the camplainant may be passed, and that the lower Court may take such action as to alimony as the circumstances may justify.
Decree reversed and cause remanded, costs to be paid by the appellee.