64 N.J.L. 65 | N.J. | 1899
The opinion of the court was delivered by
The defendant who was convicted of adultery with one H. W., wife of S. W., has removed the judgment into this court and seeks its reversal upon the ground that the court below erred in two respects—-first, in refusing to charge the jury “ that there was no evidence that H. W. was at the time of the commission of the alleged adultery with her by the defendant, the wife of S. W.” The 'court made no error in refusing this request. The woman had testified that seventeen years ago she had married S. W., and that three or four years ago his sister told her he had died. Other witnesses testified that for three or four years they had not seen S. W., but had never heard of his death. This testimony neither proved the death of S. W. nor laid the foundation for the statutory presumption of his death.
The legal proposition that is raised by the gratuitous assumption that the testimony was that the parties shared a private sleeping apartment for the night is not more favorable to the defendant.
Adultery, from its inherent stealth, is seldom provable apart from circumstances by which the disposition of the parties toward each other may be judged. This disposition develops gradually and has a duration and progress that generally, if not always, antedate opportunity. Hence the total proof of adultery is not to be circumscribed by the time and space of a single act, but rather is to be extended as widely as the demonstration of the moral qualities involved may require. The discreet limit of such proof is the character of the conduct sought to be shown, a point of which time rather than geography is apt to be the significant feature. Such testimony is in the same category with “motive, intent or preparation,” and is in nowise related to the proof of a separate offence or of a propensity to commit the crime in question or crimes generally. Meyer v. State, 30 Vroom 310 ; Thayer v. Thayer, 101 Mass, 111.
The judgment of the Quarter Sessions is affirmed.