65 N.J.L. 289 | N.J. | 1900
The opinion of the court was delivered by
The plaintiff in error was convicted of the crime of adultery in the Warren Quarter Sessions. Upon writ of error the Supreme Court affirmed the judgment. The case is here for further review.
The only exception that has been argued and that need be noticed is one taken to the ruling of the trial judge in the admission of certain evidence tending to show a previous act of adultery between the parties to the offence charged. The facts sufficiently appear in the opinion of the Supreme Court found in 35 Vroom 65.
The evidence objected to is that of a witness who, among other things, testified that in the spring of 1897 he attended the moving of one Brink, who moved from the county of Warren to the county of Sussex; that the defendant and H. W. were at said moving; that he (witness) stayed at said Brink’s, in Sussex county, all night; that the defendant and the said H. W. also stayed at Brink’s'house that night, and that the defendant and the said H. W. occupied the same room that night at Brink’s.
The record shows that the adulterous act for which the defendant stands convicted was committed by him with the said H. W., a married woman, in said county of Warren, on October 1st, 1897.
The evidence was objected to on the ground that it tended to show a separate and distinct offence, committed in another county, not embraced in the indictment.
The Supreme Court sustained the action of the trial judge in admitting the evidence objected to on two grounds.
The first ground is stated in the opinion in this wise: "As
It is contended on behalf of the plaintiff in error that this view of the Supreme Court is erroneous.
I find myself unable to 'concur in this mode of disposing of the exception.
It must -be observed that this evidence stands upon the record unexplained by the defendant or any other witness.
And standing thus, I cannot say that the circumstances thus established had no tendency to prove improper relations between these parties.
And since the evidence has such a tendency in such a degree at least, the weight and sufficiency of it is for the jury to determine. 1 Greenl. Evid. 49. Evidence of this character cannot be overruled or excluded on the ground that it fails to establish satisfactorily the adulterous act.
' It was so held in the case of People v. Dimick, 107 N. Y. 13, where, upon a charge of false pretences, the learned judge who delivered the opinion sustaining the admission of the evidence of other like offences in proof of the intent, remarked that the proof as to the other crimes may have been inconclusive, but the people had the right to give it and have it submitted to the jury, with proper instructions, for their consideration.
But the Supreme Court has sustained the ruling complained of upon the further ground that the evidence of other like acts between the parties is admissible to prove the disposition of the parties towards each other; that such evidence is an exception to the general rule excluding the proof of collateral crimes against a defendant in a criminal prosecution.
AVe are asked to reverse this ruling also, and it is contended by counsel for the prisoner that the’ cases in this state which he cites are opposed to this proposition. It is undoubtedly the general rule, as stated by Chief Justice Depue in speak
Among the exceptions to this general rule there is one that seems to be well recognized, as applying to the trial of offences involving illicit intercourse between the sexes. The principle is that, in prosecutions for adultery, evidence of prior acts of improper familiarity or adultery between the same parties is admissible after or in connection with evidence of the particular carnal act shown. The competency of this evidence arises from the fact that it proves the relations and mutual dispositions of the parties. 1 Am. & Eng. Encycl. L. 214; 2 Wharf. Cr. L. (9th ed.) 1733; Wharton Cr. Evid. (9th ed.) 35; 1 Am. Dig. (Cent, ed.) 2013 § 30.
I'n Commonwealth v. Thrasher, 11 Gray 450, there was a distinction made between improper familiarity and the substantive act of adultery—prior acts of the former character being held admissible, but of the latter inadmissible. This doctrine was distinctly overruled by the Supreme Court of the same state in the later cases of Thayer v. Thayer, 101 Mass. 111, and in Commonwealth v. Nichols, 114 Id. 285.
Mr. Justice Yan Syckel, in the recent case of State v. Jackson, ante p. 62, speaking for the Supreme Court of the state, fully affirms the doctrine I have just stated, and says that the later cases, which he cites, almost uniformly declare such evidence to be admissible.
It is urged that the rule of evidence thus.avowed is at variance with the decisions in this state and is not embraced within the exceptions summarized in State v. Raymond, 24 Vroom 260. But, nevertheless, it seems clearly to be within the principle enunciated in that case by Mr. Justice Dixon, in delivering the opinion of the Supreme Court, where he says: “And, in general, it may be said that whenever the
Upon these grounds my. conclusion is that the judgment of the Supreme Court should be affirmed.
For affirmance—Ti-ie Chief Justice, Dixon, Collins, Fort, Bogert, Hendrickson, Adams, Vredenburgi-i, Voorhees. 9.
For reversal—None.