Bishop v. Bishop

• Decision Date: 24 January 1924
• Docket Number: 3986.
• Parties: BISHOP v. BISHOP.
• Court: Georgia Supreme Court

121 S.E. 305

157 Ga. 408

BISHOP v. BISHOP.

No. 3986.

Supreme Court of Georgia

January 24, 1924

Syllabus by the Court.

John Bishop filed his libel for divorce against his wife, Alice Welch Bishop, on the ground of willful and continued desertion for more than 3 years. On the trial of the case he testified to their marriage, the willful and continued desertion of himself by his wife for a period greatly exceeding 3 years, and that he was a resident and citizen of this state for more than 12 months before the filing of this suit. On his cross-examination, counsel representing the wife asked him if he had not, on May 19, 1908, been married to one Della Wadsworth at Tumberlin, Lake (Lonoke?) county, Ark. The court instructed the witness, if he saw fit, he could decline to answer the question, if it tended to incriminate him; the court further saying to the witness that he was under oath sworn to tell the truth, and that the court wanted his answers to be truthful. Counsel for the wife again repeated the question substantially to the witness, but stated in addition the name of the justice of the peace who performed the marriage ceremony, the name of the county clerk who issued the license, and the date thereof. The husband stood mute. This colloquy then took place: "By the Court: What do you say, Mr. Bishop? Either answer the question or state your reason for not answering it. Do one or the other, Mr Bishop, and let's get along. Witness: What do you want me to answer? The Court: Read him the question." This was done. "The Court: Answer the question or else state your reason for not answering it. Witness: I told you." And here the witness stopped. "The Court: I will dismiss your case, if you don't do one or the other." After waiting a few minutes, the court said: "Well, take an order dismissing his case. Let me see the paper you have in your hand, Mr. Steed;" the latter being the attorney for the wife. The paper referred to was a marriage license issued by the county clerk of Lonoke county, Ark., dated May 18 1908, and authorizing the marriage of John Bishop to Della Wadsworth, with the certificate of a justice of the peace that on May 19, 1908, he had solemnized the marriage of these parties. This document was not offered in evidence by either of the parties, but was introduced in evidence by direction of the court. Thereupon the court passed an order dismissing the suit, to which judgment the plaintiff excepted on the ground that it was contrary to law, in that the case, under the evidence, should have been submitted to the jury. Held:

A party, though introduced as a witness in his own behalf, may upon cross-examination as to matters not voluntarily testified about on his direct examination, decline to give testimony which would tend to criminate him, or to bring infamy, disgrace, or public contempt upon himself. Civil Code 1910, § 4544; Constitution of 1877, art. 1, § 1, par. 6; Civil Code 1910, § 6362; Marshall v. Riley, 7 Ga. 367; Georgia Railroad v. Lybrend, 99 Ga. 422, 27 S.E. 794; Calhoun v. State, 144 Ga. 679, 87 S.E. 893.

Where the husband, who was sworn as a witness in his own behalf in an action brought by him against his wife for divorce, was questioned as to a matter to which he did not refer in his direct examination, and which would incriminate him, and, on being informed by the court that he could decline to answer the question, if it tended to incriminate him, the witness remained mute, his silence should have been construed to mean that he availed himself of his constitutional privilege to decline to testify as to such matter, where an affirmative answer would manifestly tend to criminate or disgrace him.

When, informed by the court that he must either answer the question or else state his reason for not answering it, the plaintiff remained silent, his failure to answer the incriminating question, or to state his reason for not answering it, would not authorize the court to dismiss his libel for divorce. In Williams v. Turner, 7 Ga. 348, and in Howard v. Chamberlin, 64 Ga. 684 (4), the questions were ones which the witnesses could properly be required to answer, and were not, as in the present case, questions such as by law the witnesses were not bound to answer.

Error from Superior Court, Murray County; M. C. Tarver, Judge.

Libel by John Bishop against Alice Welch Bishop, for divorce. Judgment for defendant, and plaintiff brings error. Reversed.

Wm. E. Mann and W. Gordon Mann, both of Dalton, for plaintiff in error.

R. Noel Steed, of Chatsworth, and Joe M. Lang, Sol. Gen., of Calhoun, for defendant in error.

HINES, J.

Judgment reversed.

All the Justices concur.

RUSSELL C.J. (concurring specially).

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