Evans v. O'Connor
Decision Date | 21 September 1899 |
Parties | EVANS SAME v. O'CONNOR. SAME v. O'CONNOR et al. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.S. Peters and H.J. Cale, for plaintiff.
B.B Jones, for defendants.
In these cases the plaintiff relied upon acts of adultery committed by the wife of the plaintiff with the defendant in the first case in the years 1893, 1894, and 1895. The evidence as to the act in 1893 was as to one occasion only and was very slight, though the evidence was abundant as to the acts of 1894 and 1895. The first exception relates to the ruling of the presiding judge in regard to the right of the wife of the plaintiff to testify. She was called by the defendants, and desired to testify as to her relations with O'Connor in the year 1893, but not as to those in the years 1894 and 1895. She was instructed by the judge that, if she testified as to matters in 1893, she could be cross-examined fully as to 1894 and 1895. The witness then declined to testify. We are of opinion that the defendants had a right to the testimony of the witness as to a distinct and separate transaction relied upon by the plaintiff, and that the witness ought to have been allowed to testify as to the year 1893, without waiving her privilege as to the years 1894 and 1895. Low v. Mitchell, 18 Me. 372. In this case the law is thus stated by Mr. Justice Shepley: See, also, Lombard v. Mayberry, 24 Neb. 674, 690, 40 N.W. 271. If, however, within the legitimate limits of cross-examination as to the fact testified to, an inquiry is started as to other facts, the witness must be considered as having waived his privilege as to the latter so far as the inquiry as to them is within such limits, and he must answer, even although his answers may tend to criminate him. We do not understand the ruling to have been thus limited by the presiding justice. As the exception applies to both cases, the exceptions must be...
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