Com. v. Ham

• Decision Date: 21 June 1892
• Citation: 31 N.E. 639,156 Mass. 485
• Parties: COMMONWEALTH v. HAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 485

31 N.E. 639

COMMONWEALTH v. HAM.

Supreme Judicial Court of Massachusetts, Middlesex.

June 21, 1892

COUNSEL

G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

C Cowley, for defendant.

OPINION

HOLMES, J.

This is a complaint under chapter 176 of the Acts of 1885, charging the defendant with unreasonably neglecting to provide for the support of his wife. He set up that his neglect to do so was not unreasonable in view of her conduct, and charged her with various breaches of her marriage duty, and with having declared that she would not live with him. In rebuttal the defendant's charges were contradicted, and two records also were put in subject to the defendant's exceptions. The first of these was a decree of the probate court, upon a petition by the wife for separate maintenance, declaring that the wife was living apart from the defendant for justifiable cause, and ordering him to pay her $16 a month. The second was a libel by the husband for divorce on the grounds of drunkenness and cruelty, and a decree dismissing the same after hearing. There is nothing to show that these records were let in as evidence of the facts decided, as tending to prove that the defendant's wife was living apart from him for justifiable cause, or that she had not been guilty of cruelty, and had not gross and confirmed habits of intoxication. But with regard to what is called in Brigham v. Fayerweather, 140 Mass. 411, 413, 5 N.E 265, the "legislative effect" of the decree, in the former case, in so far, that is, as the decree created an obligation on the defendant to pay his wife $16 a month, it would be impossible to say that it had no bearing on the question whether he was reasonable in refusing to pay her anything, notwithstanding the fact that it was res inter alios.

The ground, however, on which both decrees were admitted was a broader one, no doubt. The defendant took the position that less than sufficient to entitle him to a divorce would justify him in refusing to support his wife, and went into evidence of her conduct generally. The decrees were facts bearing on the same subject, and tending to explain her conduct, and therefore were admissible in rebuttal. The alleged declaration of the wife, for instance, that she would not live with the defendant, assumed a different color if made after the two proceedings, the records of which were introduced. The evidence was admissible for the...