O'Bryan v. O'Bryan

• Decision Date: 31 January 1850
• Citation: 13 Mo. 16
• Parties: O'BRYAN v. O'BRYAN.
• Court: Missouri Supreme Court

13 Mo. 16

O'BRYAN

v.O'BRYAN.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO COOPER CIRCUIT COURT.

This was a bill filed by a husband against his wife, on the 6th of December, 1847, in the Cooper Circuit Court, for a divorce upon the ground of adultery. The adulteries are charged to have been committed in Cooper county on various occasions, in the years 1844 and 1847, with Thomas Saunders, John Saunders and Eli Cuthrell. The defendant in her answer denied the charges, and at her instance issues of fact were ordered by the court, made up and tried by a jury at the last March term.

Upon the trial, it appeared that the parties had been married several years, had always resided in Cooper county, and had several children. Cuthrell lived in the neighborhood of the plaintiff in 1844, and was a young man and unmarried. John and Thomas Saunders were married men, and lived in the plaintiff's neighborhood in the year 1847, and previously. In March, 1847, the plaintiff went to the State of Arkansas on business, and was absent about six weeks. Upon his return, he inquired of his wife how things had gone during his absence, and was informed by her, among other things that Thomas Saunders had been very kind to her, was her best friend, and that without him, she would have suffered. Shortly after this the plaintiff's negro woman informed her master, that during his absence, she had on one occasion, caught her mistress and Thomas Saunders together under suspicious circumstances, and that her mistress manifested a great deal of confusion, when discovered. The plaintiff communicated this to his wife, who at first denied the meeting between herself and Saunders; but afterwards upon being confronted by the woman at her own request, confessed all except the embarrassment. The plaintiff, after this, meeting with Saunders, had a quarrel with him on account of his conduct towards his wife, and in the course of the quarrel, Saunders made some charges against her. The plaintiff communicated these charges to his wife, who then told her husband that Saunders had insulted her by proposing illicit intercourse. The plaintiff's suspicions being now excited, he pressed his wife to tell him all that had been done, and she finally confessed having had intercourse with Saunders, during the plaintiff's absence. The plaintiff after being satisfied of his-wife's infidelity ceased cohabiting with her, and finally on the 6th of December, 1847, filed the present bill for a divorce, and a few days afterwards, the defendant voluntarily abandoned her husband's house, and went to her brother's who resided in the same county.

These facts were disclosed by the testimony of Jordan O'Bryan, the plaintiff's brother, who learned them from the conversations he had with the defendant. The same day the bill was filed and after the plaintiff had told his wife what he had done, she confessed her guilt, in the presence of John L. O'Bryan.

Two witnesses, Caleb O'Bryan and Dixon O'Bryan, prove improper familiarities between the defendant and Thomas Saunders.

One witness, Jordan O. Taylor, proves that the defendant, after her husband's return, met Saunders in company and went to his house, as she had previously done.

Two witnesses, Mrs. L. Elliot and Simon Lewis, also prove improper familiarities between the defendant and Cuthrell, and proximate acts of adultery although there is no direct proof of a commission of the very fact.

One witness (Elizabeth Saunders), testified to indecent familiarity on the part of the defendant with John Saunders, during the plaintiff's absence; and John Saunders swore directly to two acts of adultery, that he had committed with the defendant, during her husband's absence in Arkansas.

This was all the plaintiff's evidence. The evidence on the part of the defendant, consisted in the testimony of two or three witnesses against the character of John Saunders as a man of truth; in the testimony of ten or twelve persons in relation to the good character of the defendant as a woman of chastity and general virtue: in the deposition of Thomas Saunders, who denies having committed adultery with the defendant, but testifies to gross familiarities and lewd conversations with her; and finally in an affidavit made by the defendant before a justice of the peace of Cooper county, on the 16th of December 1847, for the purpose of originating a prosecution against Thomas Saunders--that he had committed a rape upon her some time in the previous March or April.

The plaintiff objected to the defendant's evidence in relation to her character, but the court overruled the objection, and allowed the evidence. The jury found all the issues for the defendant; and the plaintiff moved to set aside the verdict and for a new trial because the finding was against the evidence, and on account of the admission of improper testimony. This was refused, and the complainant's bill dismissed, and the cause is now here by writ of error.

LEONARD & HAYDEN, for Plaintiff. 1. The verdict is palpably against the evidence. No one who has any knowledge of human nature or is at all conversant with the world, can doubt the defendant's guilt after having heard the proof that was given. Of her guilt with Thomas Saunders, there is the evidence of the proximate acts, and her own solemn confessions of guilt, made first to her husband in private, and then repeated to him in the presence of his near relations. There is also her own affidavit, swearing directly to the carnal knowledge in March or April, with the poor pretense made for the first time in December, and after the bill was filed, that it was effected by force. No complaint is made when the wrong was done. Upon her husband's return, she utters in his ears, words of praise in favor of the man who has revished her. She meets him in company, and even goes to his own house as she had previously done. At last after all this, when the bill is filed, after the lapse of nine months, the poor excuse of a rape is thought of, and sworn to, and then she takes her ravisher's deposition, and when he denies all carnal knowledge of her, the prosecution is at an end, and the wrong done is left to go unpunished. Of her guilt with John Saunders, there is the evidence of her indecent familiarity with him, and his own oath swearing unequivocally to two acts of adultery that he had committed with her, a fact concealed from all till it is drawn out of him by a judicial examination; and then told in such a manner and with such minuteness of circumstances as to leave no doubt of its truth. Even in actions at law, where the verdict is palpably against the evidence, the rule of this court is to reverse the judgment and order a new trial. Hartt v. Leavenworth, 11 Mo. R. 630. But in equity new trials in feigned issues, are awarded in cases where they would be refused at law. The Chancellor weighs the evidence, even nicely and grants a new trial, if the verdict is unsatisfactory to him. State v. Mabbot, 2 Ves. sen., 552; Lord Falconberg v. Pierce, 1 Amb. 210; Cleeve v. Gascoigne, 1 Amb. 323; Williams v. Williams, 4 Eng. Eccl. R. 415; Ostley v. Ostley, 3 Eng. Eccl. R. 305, 306; Grant v. Grant, 7 Eng. Eccl. R. 16. 2. The defendant's good character, was clearly inadmissible in evidence upon the trial of these issues. In direct public prosecutions for crimes, and in civil cases, when the party's character is put in issue, by the suit it may be given in evidence. Here, however, the party's character was not in issue in the technical sense in which the term is used, and there is no ground whatever, it is believed, for allowing the evidence. 2 Phillips' Ev. with Cowen & Hill's notes, 456, 457 and cases there cited; 2 Stark. Ev. 365, title Character; Attorney-General v. Bowman, 2 Bos. & Pul. 532; Humphrey v. Humphrey, 7 Conn. R. 116; Fowler and others v. Ætna Insurance Co. 6 Cowen, 673; Anderson's Ex'rs v. Long, 10 Serg. & Rawle, 61.

ADAMS, STUART & MILLER, for Defendant. 1. The verdict must stand unless there be a glaring deficiency in the evidence. 2. It is the province of the jury to weigh the testimony, and though the court might not have found the same verdict, it cannot for this reason be set aside. Campbell & Maison v. Hood, 6 Mo. R. 218; Todd v. Boone County, 8 Mo. R. 437; Tiffany v. Foster, 8 Mo. R. 644; Fulkerson v. Bollinger, 9 Mo. R. 338; Watts v. Douglass, 10 Mo. R. 676. 3. In this case, the weight of evidence is clearly with the verdict, and in fact it would have been an outrage to have found otherwise.

RYLAND, J.

From the above statement, two points present themselves, for the adjudication of this court. The first is the admission of the evidence of the defendant's good character; and the second, the refusal of the court to grant a new trial. If either of these points be ruled for the complainant, this case will have to be remanded.

It is a general rule that evidence of a general character is not admissible in civil suits;...