68 Vt. 659 | Vt. | 1896
It was held in State v. Way, 6 Vt. 311, on trial for adultery, that proof that the parties were found in bed together was not sufficient to convict of adultery ; that in prosecutions of this crime, as in all others, the corpus delicti must be proved ; that a person should not be presumed guilty of a crime from mere opportunity of committing it; that if this were permitted there would be great danger that the inference would be made in some cases without adequate proof.
In most crimes the corpus delicti may be established independently of the parties accused. In larceny, burglary, arson and murder, the commission of the crime may be fully established and yet the evidence point to no particular person as the perpetrator. But in adultery the corpus of the crime is the fact of sexual intercourse, and the crime cannot be proved independently of the persons on trial.
It is laid down in the books as an elementary rule that the proof of this crime is the same, whether the issue arises in an indictment, a libel for divorce, or an action on the case. This of course relates to the kind and not to the measure of evidence.
In 2 Greenl. Ev. s. 40, the rule is stated, quoting from Lord Stowell in 2 ITagg. Con. 2, 3:
“That if is not necessary to prove the direct fact of adultery, because if it were otherwise there is not one case in a hundred in which that proof would be attainable. It is very rarely, indeed, that the parties are surprised in the direct act of adultery. In every case, almost, the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them, of a more obvious nature and of more frequent occurrence, are to*663 be found in ancient books. At the same time, it is impossible to indicate them universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just manto the conclusion.”
In section 40 the writer says :
“The rule has been elsewhere more briefly stated to. require, that there be such proximate circimstances proved, as by former decisions, or in their own nature and tendency, satisfy the legal conviction of the court that the crime has been committed,”
And cites Pollock v. Pollock, 71 N. Y., as holding that general cohabitation as man and wife excludes the necessity of proof of particular facts. It is also laid down in the same section and sustained by authorities cited in the notes, that where an adulterous disposition of the parties has been established, the crime may be inferred from their being found together iu a bed chamber under circumstances authorizing such inference. This rule is recognized in Bish. Mar. & Div. 2d ed., s. 422.
In x Am. & Eng. Ency., 2d ed., p. 752, the law is stated as follows:
“From the nature of the offence of adultery it is not, save in exceptional cases, susceptible of direct and positive proof; it can more often only be established by evidence more or less circumstantial in its nature.
“Hence, it is considered that direct proof of the carnal act is not necessary ; it is sufficient to show circumstances from which the jury may reasonably infer the guilt of the parties. So it has been held that the act of adultery may be proved by evidence that a man and woman occupied the same bed and room, undressed, in the night time, or even that they occupied a room with a bed in it most of' the night.”
In the notes is cited State v. Green, Kirby 87, Conn.,
In Com. v. Bowers and another, 121 Mass. 45, the respondents were found in a bed-room, at a hotel, about twelve o’clock at night, the man in bed, the woman not in bed, with her clothes on except her corset and shoes; held, that the circumstances, unexplained, would warrant the jury in finding ' them guilty of adultery.
Colt, J., in Thayer v. Thayer, 101 Mass, in, said:
“The evidence by which the act of adultery is proved is seldom direct. The natural secrecy of the act makes it ordinarily impossible to prove it, except by circumstantial evidence. * * * But when an adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, with comparatively slight circumstances showing guilt, will be sufficient to justify the inference that criminal intercourse has actually taken place. The intent and disposition of the parties towards each other must give character to their relations, and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties. It is true that the fact to be proved is the existence of a criminal disposition at the time of the act charged; but the indications by which it is proved may extend, and ordinarily do extend, over a period of time both anterior and subsequent to it. The rules which govern human conduct, and which are known to common*665 observation and experience, are to be applied in these cases, as in all other investigations of fact.”
He further said that when an adulterous disposition is once shown to exist between two persons, a strong inference arises that it will have continuance : that the rule is, that a condition once proved to exist is presumed to have continuance till the contrary be shown.
It is in this view that the rule is generally stated, that an adulterous disposition being proved to exist between the parties, and an opportunity being shown for them to commit the crime, the fact may be inferred, if the circumstances are such as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt. See State v. Brecht, 41 Minn. 50; State v. Ean, Iowa, 58 N. W. 898; People v. Girdler, 65 Mich. 68, cited in 1 Am. and Eng. Ency. 753.
It was held in Com. v. Clifford, 145 Mass. 97, that, ’
“If a married man is found with a woman not his wife in a room with a bed in it, and stays through the night with her there it is sufficient to warrant a finding of adultery against him.”
A familiar instance given in the books of the competency of circumstantial evidence to prove this crime is that of a married man visiting a brothel and remaining for some time alone in a room with a common prostitute ; another, that of a woman going to such a place with a man. 2 Greenl. Ev., s. 43. The birth of children to a married woman whose husband is living and proof of his non-intercourse, is always proof of the corpus delicti; so it is not necessary that parties be detected in the act.
In State v. Hart, Iowa, 64 N. W. 278, the charge of the court was:
“You are instructed, in cases of this kind, that it is not necessary to prove the direct fact of adultery by the evidence of witnesses who can testify from personal knowledge of the actual fact of adulterous intercourse in every case. Almost always the fact of adultery, if established at all, must be by circumstantial evidence, by the proof of circumstances that*666 lead the mind, honestly searching for the truth, to the conclusion necessarily that the act oí adulterous intercourse had actually taken place. The circumstances, however, offered by the state to prove the fact of adultery, must be such that, when fairly and honestly considered, exclude all reasonable doubt, and can be explained upon no reasonable hypothesis but that of the defendant’s guilt.”
The charge was sustained as stating the law correctly.
The oases and text books above cited clearly sanction the admission of circumstantial evidence as tending to establish the corfus of the crime, and not merely in corroboration of direct and positive testimony. This was held in State v. Bridgman, 49 Vt. 202. A quotation from the syllabus of that case is as follows :
“Evidence of other acts of improper familiarity and adultery between the parties to the alleged offence, continuing from before until after the offence charged and after indictment found, is admissible, although it proves other and distinct offences, to show the true relation of the parties to each other, — to show that the restraints and safeguards of common deportment and conventionality, and of natural modesty that is presumed to exist, have been broken through and displaced by the adulterous disposition and the habits of adulterous intercourse.”.
In State v. Polcet, 8 Ire. 23, a witness testified that he went early one morning to the house of one of the defendants, and on knocking, was, after some delay admitted by the female defendant, who came to the door with her frock on but unfastened ; that the male defendant was in the only bed in the room ; that the woman’s shoes were near the head of the bed, and that the bed seemed to be very much tumbled ; held that the court did risrht in refusing the instruction prayed for, that there was no evidence from which the jury might infer the criminality of the defendants ; that in the absence of express and positive testimony the law authorized the conviction of the defendants on presumptive evidence, if it was so strong as to leave no reasonable doubt in the minds of'the jury that they were guilty. This doctrine was reaffirmed in
In State v. Richardson, 34 Tex. 142, the facts were that a married man and a colored woman, not his wife, lived together for a series of months in the same room, wherein was but one bed, and with no attendant but a small child ; held to be strong evidence of cohabitation in adultery, and sufficient to warrant a verdict of conviction.
In Pollock v. Pollock, supra, Folger, J., said:
“ And though it is an act of darkness and great secrecy, and not often provable by direct means, and the evidence must in most cases be circumstantial, yet the circumstances must be sufficient to satisfy the mind that the adulterous intercourse has taken place. Though presumptive evidence alone is sufficient to establish the fact, the circumstances must lead to it, not only by fair inference, but as a necessary conclusion.”
In States. Potter, 52 Vt. 33, the exceptions state that there was no direct proof of the commission of the act alleged within three, years before the finding of the indictment, but the state’s evidence, “ tending to raise a presumption of the commission of the act was,” that the respondent and his unmarried step-daughter had for a number of years, and within the three years, occupied the same sleeping room; that the girl had borne three children, the respondent procuring and paying for the services of doctor and nurse; that he was present when the children were born; that he called them his and supported them, and said he could have sexual intercourse with the girl. This was submitted by the court to the jury, not as direct, but as circumstantial evidence. Evidence Avas also admitted tending to show that the parties had intercourse with each other five, six and seven years before. This Avas objected to on the ground that the corpus delicti had not been proved. This court held that evidence admissible; also, that the birth of children to the alleged particeps criminis having been proved, “any evidence tending to
As before observed; the law does not require a different kind of evidence in criminal prosecutions for adultery from that required in civil suits. The difference is only in the conviction which the evidence carries to the minds of the triers of the fact. The court, in State v. Potter, in respect to the admission of a marriage certificate, said :
“ The rule governing the legitimacy of documentary evidence is the same in criminal as in civil cases. The difference in the rules of evidence as between the two classes of cases is in respect to the measure and weight of the evidence addressed to the jury upon the matters on which they are to pass.”
It has not been the practice to apply the rule in State v. Way in the trial of divorce cases for the cause of adultery. In an action on the case for crim. con. it would not be error if the court submitted to the jury evidence like that in the present case as tending to prove the fact in issue. It would therefore be illogical to hold it error in this case, that the court submitted the evidence to the jury with proper instructions, as having a tendency to prove the crime alleged, though not conclusive of it.
If the doctrine of State v. Way is adhered to, that the fact of a respondent’s illicit intercourse-must lie first proved, then the only office of circumstantial evidence is to corroborate the direct evidence, — perhaps identify the fiarticejos criminis,— and a conviction can rarely be had on account of the secret nature of the crime. We think that proof of the corpus should not be limited to direct evidence, as detection in the act, nor to what Greenleaf (Vol. 1, s. 13 a) denominates cir
For the reasons stated in the second point the exceptions aré sustained; judgment reversed, verdict set aside and cause remanded.