89 Vt. 121 | Vt. | 1915
Lead Opinion
The information charges that the respondent, on, to wit, the fifteenth day of June, 1912, committed the crime of adultery with one Carrie N. Gray, then the wife of one Edwin W. Gray.
Subject to exception on the ground that it was not proper evidence of the fact, the State was permitted to show the mar
The State elected to ask for a conviction for an alleged act of adultery committed at the time of, and responsible for, the conception, by Mrs. Gray, of a child which was born the second day of June, 1913, the evidence tending to show the probable date of the offence to have been during the last week of August, 1912.
The evidence on the part of the State tended to show that Mrs. Gray was then living in the town of Peacham, that her husband was 'then living in the town of Sheffield, and that sexual intercourse was not had between them. On the other hand, the respondent’s evidence tended to show that the husband visited his wife and had sexual intercourse with her at this time, that is, in the latter part of August, 1912. Subject to exception on the ground that the evidence was irrelevant and immaterial, the State was permitted to show by the attending physician that, on June 2, 1918, Mrs. Gray gave birth to a full-term child. The witness further testified that the ordinary period of gestation is 280 days; that the time may vary, though not a great deal, save in a few cases where the actual period can not be ascertained.
Other than above stated, the exceptions do not show the evidence on the part of the State, tending to show non-access (that is, no sexual intercourse) of the husband to the wife at such a time as that, in the course of nature, said child could have been begotten. There is nothing indicating a separation by legal dissolution of the marriage relation, and so we construe the exceptions to mean that the husband and wife were, by consent, living separately in the different towns named, and some miles apart.
The Court will take notice that the town of Sheffield is situated in the north part of the county of Caledonia, and that Peacham is situated in the southern part of the same county, there being in direct line between them two other towns, neither of which is less than the ordinary width of six miles, north and south.
It is contended by the respondent that the evidence of the birth of the child was erroneously received, because the evidence in the case did not show the impossibility of the husband’s access to the wife at the time when the child was begotten. Early English and some American cases support this position. But this
In 1837 the question was fully considered by the House of Lords in Morris v. Davies, 5 Clark & F. *163. There the husband and wife after living together for ten years and having one child agreed to live apart, and they did thereafter so live at a distance of fourteen or fifteen miles from each other. Although they separated, it did not appear that they were in a state of variance or hostility with each other. A young man who had been taken into their service was suspected of some familiarity with the wife, and he accompanied her, together with other servants, to the place of her residence after her separation from her husband; yet notwithstanding this circumstance, some intercourse still continued to be kept up between the husband and wife: the husband was in the habit of going over to the place where she resided, and on some of these visits he, in company with her, gave directions with respect to the conduct and management of the property; on more than one occasion he was in her house; and he sometimes walked with her. Some four years after their separation the wife became pregnant, and in the course of time she was delivered of a child. The court below said that in the absence of all-evidence, either on the one side or the other, the law would presume that sexual intercourse took place between the husband and wife in the spring when the child was begotten; but on the evidence in the case it was a question of fact whether such intercourse did take place. On the appeal, the Lord Chancellor said the opinions of the judges in the Banbury Peerage case were of infinite value as the unanimous opinions of the judges of England; that undoubtedly they derive much greater weight as being submitted to the House of Lords,
Mr. Starkie says that if there be a separation by consent, the presumption of law will still be in favor of access of the husband to the wife and of legitimacy till the contrary be proved. Stark. Ev. IV. *218. And on page *219 the same author says, “Where the husband is within the realm, it is not incumbent on the party alleging bastardy to prove that the husband could not by any possibility have had access to the wife; it is sufficient to adduce such circumstantial evidence as satisfies the minds of the jury.” And so in principle is Hargrave v. Hargrave, 9 Beav. 552. In Thayer on Evidence, Appendix A, 540, it is said: “Formerly, all children born in lawful wedlock, if the husband was not impotent, or beyond the four seas during a period exceeding that of gestation, 'were legitimate; nor could evidence to the contrary be received in a court of law. The presumption of law was then imperative; whatever might have been the real facts of the paternity, and however clearly they might be proved, still the husband was considered as the father of his wife’s children. Since that time, however, the rule has been changed, and probable evidence that the husband was not the father of the child, is admissible.” The author classes this presumption with those that are disputable or rebuttable, and like the presumption of innocence sufficient .to place the burden of proof upon the party asserting to the contrary. In Randolph v. Easton, 25 Pick. 242, Chief Justice Shaw said, “It is true that a child born in wedlock, shall be presumed to be the child of the husband; but it is a presumption of fact, which may be rebutted by proof of non-access. ’ ’ And' where the husband and wife live apart, non-access' may be shown by the facts and circumstances. Commonwealth v. Wentz, 1 Ashm. 269; Commonwealth v. Shepherd, 6 Bin. 283, 6 Am. Dec. 449; Re Matthews’ Estate, 153 N. Y. 443, 47 N. E. 901; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. 450; S. C. 15 Ga. 160, 60 Am. Dec. 687; Phillips v. Allen, 2 Allen 453; Herring v. Goodson, 43 Miss. 392; Orthwein v. Thomas,
On the record before us, we can not say that the evidence of the birth of the child was either irrelevant or immaterial, and hence error in the ruling admitting it does not appear.
Were the question as to the weight or sufficiency of the evidence to rébut the presumption of legitimacy presented only by the motion for a verdict, it would be quite enough to say that it need not go to the extent of showing it impossible that the husband could have been the father of the child. But by exception to the charge, the question is raised as to whether the rule laid down by the court, is correct, namely, that legitimacy of the child is presumed, until the presumption “is encountered by such evidence as proves to the satisfaction of” the jury that sexual intercourse did not take place between the husband and the wife at any time when by such intercourse he could have been the father of the child. It is urged that to rebut the presumption, proof beyond a reasonable doubt is required.
It will be noticed that the court charged in the exact language of the rule stated in the Banbury Peerage case, so the question is, Just what did the judges of England mean by their saying that the evidence must be such as to prove “to the satisfaction” of those who are to decide the question, etc.? In Head v. Head, 1 Sim. & Stu. 150, the Vice-Chancellor said the evidence must be of a character to exclude all doubt, and that when the judges in the Banbury Peerage case spoke of satisfactory evidence upon this subject, they must be understood to have meant such evidence as would be satisfactory, having regard to the special nature of the subject. In Morris v. Davies, in the court of chancery, Lord Lyndhurst said the ease of Head v. Head does not in the slightest degree affect the opinion of the judges in the case of the Banbury Peerage; that it recognizes and adopts that opinion, and all that is said by the Master of the Rolls is, that the court must be satisfied, not upon a mere balance of probabilities, but upon evidence which must be such as to exclude all
We therefore hold that the charge given as to the measure of proof necessary to rebut the presumption of legitimacy of the Child, was equivalent to instructing the jury that the evidence must be such as to satisfy them beyond a reasonable doubt, and consequently it was in compliance with the law as claimed by the respondent.
The respondent’s father and mother, Eugene IT. Shaw and Mrs. Susan Shaw, were important witnesses in his behalf. In arguing the case to the jury, one of the attorneys for the State read to the jury alleged extracts from the testimony of these witnesses, taken at an inquest held sometime previous to the trial, in accordance with the provisions of the statute (P. S. 5529 as amended by No. 223, Acts of 1912) authorizing such an inquest upon any criminal matter under investigation by the state’s attorney. To this respondent seasonably objected and was allowed an exception.
Eespecting the alleged testimony of Eugene IT. Shaw, thus read to the jury, there was no evidence tending to show that it was in fact given by Mr. Shaw, and the same was not introduced in evidence nor in any proper manner before the court or jury, beyond what the witness testified to it at the trial in cross-examination : he was asked by the state’s attorney whether he testified at the inquest in answer to certain several questions as follows — giving the questions and answers. Some of these questions thus asked, the witness answered in the affirmative; some of them he answered in the negative; and some, he answered that he might have, could not say whether he did or not. There can be no doubt that so much of the alleged testimony of the witness before the inquest as was not affirmatively testified to by him at the trial, was not in the case for any purpose, and to permit the attorney for the State to read it before the jury was to permit him to go beyond the evidence and to put before the jury in an improper manner prejudicial matter well calculated to discredit the testimony of the witness, given at the trial. This was error.
In the concluding paragraph of the charge, the court told the jury that in cases of this sort, where an adulterous disposition is shown between a man and woman, and the opportunity is found to have existed for them to have sexual intercourse, the law fixes as a rule that jurors may be guided by, that where the guarded discretion of a reasonable and just man would lead to the conclusion that sexual intercourse had taken place, it would be proper for the jury so to find; further saying to the jury immediately in connection therewith: "Now, applying that standard to this case, what do you say about it? You take into account all the evidence, and what you have been ádvisecl in reference to the law of the ease, and say whether this respondent is guilty or not guilty.” An exception was taken to the part preceding the semicolon, as shown above. In argument the portion of the charge covered by this exception is in effect divided into two parts, each of which is said to be defective: the first part, in that it was improper to instruct that a conviction could be based upon merely an adulterous disposition between the man and woman, and an opportunity for sexual intercourse; and the second part, in that the jury could convict if the guarded discretion of a reasonable and just man would lead to the conclusion that sexual intercourse had taken place. Let the instructions be so construed, and the exception treated accordingly. Early in the charge, the court stated as the essential questions of fact to be established by the prosecution in order to make out a case, the marriage of the particeps criminis, the life of her husband at the time when the offence was alleged to have been committed, and the act of adultery between her and the respondent. In connection therewith the court carefully and correctly instructed the jury that the burden rested upon the State to prove these facts beyond a reasonable doubt, particularly explaining the force of the words "reasonable doubt;” also then charged fully and correctly the law of presumption of innocence, and the character and use of that presumption as evidence. These rules' of law thus stated to the jury were subsequently referred to by the court several different times in the course of the charge, the last time being immediately after, and in connection with, the part to which the exception under consideration was taken. And
An exception was taken to the failure of the court to charge that there could be no conviction, except for an act committed at the time the child was begotten. But the charge given was to that effect. The jury were instructed that the State had elected to rely for the substantive offence, upon “one offence, and there can be but one found, ’ ’ which it says was committed at the time of the conception of the child which was born on the second day of June, 1913. They were then told to bring their attention to that period of time and to say whether on the evidence and the law laid down by the court, the respondent was guilty, — in effect if the case had not been so made out, to find him not guilty.
Exception was also taken because the court did not tell the jury that the fact of the respondent’s being brought into court and put on trial, was not evidence o'f his guilt and was not to be taken against him. Whatever danger of prejudice there may be, arising from being charged with guilt and held on that charge, it is within the purpose of the rule of the presumption of innocence to obviate such danger. Thay. Ev. 348; State v. Costa, 78 Vt. 198, 62 Atl. 38.
Judgment and, sentence-reversed and cause remanded for a new trial.
Dissenting Opinion
dissenting. I am unable to agree that the exception to the reading in argument of the extract from the testimony of respondent’s father given at the inquest presents reversible error. The record states that the extract read tended to contradict the witness and it will be.presumed that such was the use made of it. So far as appears, no ground of objection was stated and it must be taken that none was given. It is now urged that no foundation was laid for the impeachment. Such foundation as there was is found in the cross-examination of the witness. To a question embodying the questions and answers read, the witness answered, ‘‘I might have at that time. ’ ’ While witness said, when pressed, that he did not remember that particular piece .of testimony, he promptly admitted having testified to the same thing in substance. It is true that the precise language had not been proved affirmatively; but the substance had been admitted in language so nearly identical that the rights of the respondent could not possibly have been prejudiced. I quote for comparison (1) the questions and answers read and (2) the questions and answers admitted by the witness in cross-examination relating to the same matter.
(1)
Q. Tell the court what you have seen.
A. Well, I have seen them lying on the bed together several times.
Q. How often has that occurred ?
A. About every night.
Q. Well, nearly every night in the summer time?
A. Well, nearly every night in the summer time.
(2)
Q. Now, have you been to bed a good many times and left them together in that room?
A. Yes, sir.
Q. Lying on the bed?
A. Yes, sir.
Q. Well, that was the ordinary occurrence for them to be there when you went to bed at night?
A. Yes, sir; most nearly every night.
The word “there,” taken in connection with what goes before, evidently means “lying on the bed together.” The Court should not hesitate to find, nor in the interest of speedy justice fail to find affirmatively, that, error if such there was, was clearly harmless.
I would override the exception and affirm the judgment.
