29 Pa. Super. 535 | Pa. Super. Ct. | 1905
Opinion by
This was a libel in divorce a. v. m. on the ground of adultery, the issue being made by an answer on the part of the' respondent denying the charge and demanding a jury trial. Before trial and verdict the respondent filed a supplemental answer, by leave of court, setting up the adultery of the libel-ant during his marital relations with her as a statutory defense and demanding a jury trial as to the additional issue thus joined, but the court refused to allow any evidence to be given in support of this charge. The result of the trial was a verdict in favor of the libelant, and a final decree in divorce having been granted the respondent appealed to this court.
The record contains five quite lengthy assignments of error, but they can all be considered under three heads : (1) the refusal of the court to hear testimony as to the respondent’s character for virtue and chastity; (2) the refusal of the court to admit testimony that the libelant had committed the crime
At the trial counsel for the respondent offered to prove by two witnesses, who knew Mrs. Talley continuously up to the date of the trouble with her husband, that she had always borne a good reputation for virtue and chastity. This offer was objected to and the court sustained the objection and allowed an exception to the respondent. It must be conceded that this question is not without difficulty. The action in divorce grounded on adultery is said to be a civil action, yet it partakes very largely of the nature of a criminal prosecution.
In Garrat v. Garrat, 4 Yeates 244, Yeates, J., in pronouncing the opinion of the court in regard to a charge of adultery in a divorce case, said : “ I perfectly concur in opinion with the judges who tried the issues in this libel, that it would be highly dangerous to the citizens in general if they were compelled to answer to criminal charges without being informed of the specific offenses against which they were called upon to defend themselves.
“ Common sense is in unison with the constitution when it declares that, in all criminal prosecutions, the accused hath aright to be heard by himself and counsel, and to demand the nature and the cause of the accusation against him.” There we find a plain declaration to the effect that an action for divorce founded on a charge of adultery is a criminal charge or prosecution.
In Matchin v. Matchin, 6 Pa. 332, Gibson, C. J., said (p. 336): “ A libel for divorce is said to partake of the nature of a criminal proceeding, but the primary intent of it is undoubtedly to keep the sources of generation pure, and when they have been corrupted, preventative remedy is to be applied without regard to the moral responsibility of the subject of it.” This was said in reference to an action in divorce founded on adultery, and it is another declaration of our Supreme Court that such action is of the nature of a criminal proceeding.
In 1 Greenleaf on Evidence, sec. 54, it is said : “ To this rule may be referred the admissibility of evidence of the gen
In 2 Bishop on Marriage & Divorce, sec. 644, it is said: “ The principle which best commends itself to reason and modern authority is, that the rules of evidence are the same in civil and criminal causes, when the issue, which is the test, is the same. And elsewhere it is held, for example, in an action of slander wherein the defendant pleads the truth in justification, that the plaintiff in reply to the defendant’s testimony, may introduce evidence of his good character, in analogy to the rule prevailing in criminal proceedings. And the doctrine, as applicable to civil and criminal suits, has been well expressed by Chancellor Walworth to be, that, if a party is charged with a crime, or any other act involving moral turpitude, which is endeavored to be fastened upon him by circumstantial evidence or by the testimony of witnesses of doubtful credit, he may introduce proof of his former good character.” See also sec. 645 : “ The practice of the courts generally in divorce suits has been to receive evidence of character to an extent somewhat beyond even the practice of common-law courts in criminal cases. ... In Ohio it was laid down, in an adultery divorce suit, that the complainant’s general reputation for chastity is always in issue, in cases of this sort.”
In Nash v. Gilkeson, 5 S. & R. 352, there was an action of assumpsit, and the defendants, conceiving that the evidence given by plaintiff intended to impeach the honesty of Gilkeson, their testator, brought out in cross-examination of one of the plaintiff’s- witnesses the general character of Gilkeson. Gibson, J., speaking for the court, said: “ There cannot be the least doubt but the evidence was improperly received; Gilkeson’s general character was not put in issue by the nature of the action, and it never was pretended that when a party is
In Zitzer v. Merkel, 24 Pa. 408, which was an action on the case by a father for the seduction of his minor daughter by the defendant, evidence of the good character of the daughter was offered and received in evidence, but the Supreme Court reversed the judgment for this reason.
A general review of the cases in Pennsylvania does not satisfy us that the court erred in excluding the evidence of the previous good character of the respondent for virtue and chastity. It seems to the writer, however, in view of the criminal character of the charge of adultery, and the moral turpitude involved therein it would be proper to allow a respondent so charged to prove her previous good character for virtue and chastity. But it is a sufficient reply to this contention that the adjudicated cases do not seem to authorize such testimony.
In Porter v. Seiler, 23 Pa. 424, it was decided, as stated in the syllabus : “ In an action of trespass for injury inflicted with a knife evidence of his general good, peaceable character was not admissible on part of defendant for the purpose of rebutting malice. Evidence of character is not admissible in civil suits except where it is directly in issue, and Avhere from the nature of the issue such evidence is of special importance in the suit trying. Whether the act charged or complained of be indictable or not is not material.”
In many of our sister states it seems that evidence of the previous good character of the respondent in divorce cases founded on adultery has been received. And in Massachusetts evidence of the reputation of the alleged co-respondent was received.
But we are controlled by the general trend of the decisions upon analogous cases in Pennsylvania. And they do not seem to sustain the doctrine of 1 Greenleaf on Evidence, sec. 64, and 2 Bishop on Marriage and Divorce, see. 644.
The second assignment raises the question of the refusal of the court to receive proof of the adultery of the libelant while he was. the husband of the respondent. The offer to prove the adultery of the libelant was specific, giving the date. In our opinion it was error to reject this offer, notwithstanding the
The reason moving the learned court below to reject the offer giving rise to the second assignment, seems to be based upon the fact that the respondent admitted the libelant into conjugal society, or embraces, after she knew of the criminal fact. The act recognizes adultery as a crime and provides that it shall be a good defense and a perpetual bar against an action for divorce on the ground of adultery, brought by a libelant who has been guilty of the same crime. If this libelant had committed adultery as stated in the offer, and we must now assume that it could have been proved, he was guilty of a crime, which was a perpetual bar against his action, unless condonation by the wife would operate to relieve him from this disability.
On the consideration of this case the members of the court do not agree upon the question of whether or not it was in the power of the wife to so condone the offense of the husband, if the evidence warranted a finding that he was guilty of adultery, so as to allow him to procure a divorce from his wife for the same offense. But we are all of the opinion that the court erred in not admitting the evidence to sustain the offer giving rise to the assignment under discussion, and then it would be a ques
In this connection see Costello v. Costello, 191 Pa. 379.
We now come to the fourth assignment which complains of the learned court in refusing the defendant’s eighth point. The ground of this refusal was that the question raised by this point was sufficiently covered in the general charge. This point seems to be in accord with the doctrine of some of the text-writers. But in our opinion, it is perhaps a little too technical and refined for the consideration of a jury by a simple affirmance of it. A careful reading of the charge satisfies us that it was plain and adequate, and it is likely that a reading and affirmance of this point would not have aided the jury in reaching a correct conclusion.
The same may be said in substance as to the fifth assignment, and we do not think, in view of the general charge, that the learned judge erred in refusing to read this point to the jury and affirm it.
The assignments are all dismissed except the second, -which is sustained, and the decree is reversed with a v. f. d. n.