Simons v. Simons

13 Tex. 468 | Tex. | 1855

Lipscomb, J.

This was a suit brought by the defendant in error, against the plaintiff in error, for' a divorce from the bonds of matrimony, on the ground of two distinct acts of adultery with one Cartwright Logan. There was a trial, and a verdict for the plaintiff, in the Court below, on which a decree was entered up, dissolving the bonds of matrimony subsisting between the parties. The defendant below, the wife, brings the decree before this Court for revision, and the insufficiency of the evidence to support the decree is assigned and mainly relied on to reverse the decree. The first ground of the insufficiency of proof is supposed to be in this, that the marriage of the parties at the time and place alleged in the petition was not proven. There can be no doubt but the fact of marriage ought to be proven, because, if there has been no marriage, there can be no divorce; (see Wright v. Wright, 6 Tex. 16;) but the answer in this case admits the marriage as charged and set out in the petition. The plaintiff in error supposes this admission of the wife, in her answer, cannot dispense with the proof of the fact by proper evidence; and he rests his objection on Art. 856, Hart. Dig. The portion of the Article relied on is as follows, i. e.: “but the decree of 66 the Court shall be rendered upon full and satisfactory evidence, independent-of the confession or admission of either “ party, and upon the verdict of the jury affirming the mate- “ rial facts alleged in the petition.55 That the averment of the marriage is material in the petition, is not an open question in this Court. In Wright v. Wright, above cited, the language of the Court is, “ The intermarriage of the plaintiff “ and defendant, and its continuance to the present time are “ alleged; there are essential preliminary averments, and their “ proof at the trial is indispensable.55 It being so material a fact, it must be proved at the trial independent of any admission or confession of the party.

There is, however, another objection to the sufficiency of the evidence, more important because it goes to the grounds of the suit, the criminality of the defendant. The charge of adultery was not proven positively but by one witness, and to the disgrace of manhood, that witness the alleged paramour in the adulterous intercourse. It could hardly be questioned that he might have refused to testify, because as a particeps criminis, he could not be required to inculpate himself; and farther, ifc might have been furnishing evidence against himself in a suit against him at the instance of the husband. Professor Greenleaf dismisses this kind of evidence in a very summary way. He says “the paramour is an admissible witness; but being particeps criminis, his evidence is but weak.” (2 vol. Sec. 46.) It was not corroborated by any other witness or circumstance. Mrs. Gray testifies nothing that would be in the slightest degree incompatable with innocence; and the other female witness, called too by the plaintiff, and. sister to the alleged paramour, so far from criminating, exculpates her from the charge. If we were to stop here, this paramour’s evidence, in the language of Professor Greenleaf, would be weak. But it seems that a letter was written by this witness and read in evidence, in which he puts the seal of condemnation and falsehood upon the charge, in the most emphatic terms. This letter, it is true, could not destroy the admissibility of Ms evidence, but it certainly renders that that was weak before, still weaker, and leads to a strong suspicion of his wish to acquire an infamous notoriety by boasting of favors never received. The sacred marriage bond can never be legally dissolved on a charge however grave, if only supported by such weak, flimsy and incredible testimony. We are disposed to question the propriety and policy of the rale even, admitting the paramour to the witness stand, under the iorand of infamy, as Professor Greenleaf’s rule admits Mm. The question has not been viewed in all of its tendencies. He is only viewed as a particeps criminis, ready to swear to Ms own guilt; and if we were certain that such witness would be only called on when there was in truth guilt, it might well be allowed them to swear with the express understanding that their evidence was weak, and, without corroboration, would be insufficient to establish the fact of guilt. But we have reason to believe that such testimony would be often offered when there had been no guilt committed.

We will suppose that when this witness is put upon the stand to prove the fact, if it is in his power to answer truthfully in the affirmative, the temptation to one who had a single spark of generous, manly, chivalric feeling to woman in his bosom, would be so strong to screan and protect the guilty fair one, that there would be imminent danger of his being driven to the commission of perjury. He would be further induced to adopt this alternative, from a knowledge of the fact, that if he answered in the affirmative he thereby fixed on himself the indelible seal of infamy, that would exclude him from the companionship of all men of honorable feeling. But suppose he was to refuse to answer, upon the ground that he could not do so without criminating himself, although by doing so, he could prevent a conviction of guilt, yet the female, by his silence, would have, in the opinion of the public, the seal of condemnation fixed on her reputation, never to be effaced. And this would be the result, even if she was in truth innocent, and the witness to play the part for which he was called, by an unkind and inhuman husband, to destroy the reputation of his innocent wife, by the witness standing mute when questioned, when if he had answered with truth, he could not have said anything against her innocence.

Such being the effect of permitting such persons to take the witnesses stand, when it is conceded that he was barely admissible, and entitled to not much credit, we believe that policy forbids his being sworn at all in such eases, when the prospect of advancing the truth falls infinitely short of the evil that would be most likely to result from his swearing at all.

The decree must be reversed and the cause remanded to the Court below.

The filing the petition for a divorce, grounded upon the supposed adultery of the wife, is not, of itself, sufficient ground to support the cross-petition of the wife, praying to be divorced from her husband. If the husband should fail in Hs snitfor the divorce, and afterwards should continue to asperse her character, publicly denouncing her as an adulteress, how far such facts would sustain the wife’s application for a divorce, would require some consideration.

Reversed and remanded.