Jenkins v. Jenkins

• Decision Date: 14 February 1922
• Parties: JENKINS v. JENKINS.
• Court: Oregon Supreme Court

204 P. 165

103 Or. 208

JENKINS v. JENKINS.

Supreme Court of Oregon

February 14, 1922

Department 2.

Appeal from Circuit Court, Harney County; Gustav Anderson, Judge.

Suit for divorce by T.E. Jenkins against Tissie Belle Jenkins, in which defendant filed a cross-complaint. From a decree that neither party was entitled to a divorce, plaintiff appeals. Affirmed.

This is a divorce suit. By his complaint T.E. Jenkins accused his wife, Tissie Belle Jenkins, of the commission of the crime of adultery, alleged to have been committed with one Rector Arnwine in Harney county, Or., on April 5, 1918, and, because of such alleged lascivious conduct, prays for a decree of divorce.

The defendant wife, answering, denied the accusation made by her husband, and filed a cross-complaint in which she prays for a decree of divorce, and for grounds avers: First, her husband's habitual gross drunkenness, contracted since marriage, and continuing for one year prior to the commencement of the suit; second, cruel and inhuman treatment, together with personal indignities rendering life burdensome. The cruel treatment complained of consisted of the crime of assault and battery committed upon her person by her husband on frequent occasions, and the accusation of the crime of adultery preferred against her by her husband causing her to be indicted, arraigned, and tried therefor.

The lower court found as facts that prior and subsequent to the marriage of the parties to this suit plaintiff indulged habitually in grossly excessive use of intoxicating liquor that during his drunken sprees he inflicted great physical violence upon his wife, and applied vile names to her; that prior to their marriage she knew that Jenkins was an habitual drunkard, but that he had promised her that he would not drink to excess; that in April, 1918, the husband publicly accused his wife of having committed the crime of adultery with one Rector Arnwine, and testified against them in the criminal prosecution following the accusation by indictment which trial resulted in the acquittal of both; that subsequent to the accusation made by the husband, and after the commencement of the criminal prosecution based upon the charge of adultery and the commencement of the suit for divorce, the parties hereto freely resumed the marital relationship, including cohabitation and intercourse.

The court made no findings upon the charge of adultery preferred by plaintiff against his wife, for the reason that their resumption of the relationship of marriage, cohabitation, and intercourse precluded each and both from rightfully demanding a decree of divorce.

As conclusions of law, the court found:

"That both parties being at fault, and each having by acts and words conclusively condoned any and all offenses alleged committed prior to the commencement of this suit, neither plaintiff nor defendant is entitled to a decree of divorce * * * and that plaintiff should pay all costs and disbursements."

Based thereon, the court made and entered a decree in accordance therewith. From the decree Jenkins appeals, assigning error on account of the court's findings of fact and conclusions of law, and the decree dismissing the suit. The wife failed to appeal.

J.W Biggs, of Burns, for appellant.

H.V Schmalz, of Burns, for respondent.

BROWN, J. (after stating the facts as above).

A question presented to us is the degree of proof required to establish the charge of adultery in a suit for the dissolution of the marriage contract. There are decisions teaching that proceedings for divorce are in their nature criminal, and that the facts necessary to establish the crime charged as grounds for a divorce must be proved beyond a reasonable doubt. It was said by the Supreme Court of Texas in Stafford v. Stafford, 41 Tex. 111:

"While the suit for a divorce is in its form a civil proceeding, it has widely different features and incidents connected with it. In all divorce suits the defendant is charged with a breach of a solemn contract; in many cases with disgraceful and brutal conduct; in others with offenses that are known to the law either as a misdemeanor or felony. Again, no judgment of divorce can be rendered by agreement or consent; none by confession or admission of either party; neither can a judgment be rendered by default, and, as in criminal cases, the defendant cannot be compelled to criminate himself by answering or testifying under oath. These facts show that it is in its nature a quasi criminal proceeding, although not presented in the name of the state, nor punished by fine or imprisonment."

In Berckmans v. Berckmans, 17 N.J.Eq. 453, the court said:

"The charge made by the complainant, if true, is known to our law as a crime; consequently this prosecution partakes strongly of the nature of a criminal proceeding, so much so as to place the complainant under the necessity, not only of placing a decided preponderance of testimony in favor of the charge, but of proving it to the satisfaction of this court, beyond a reasonable doubt. I do not mean to say that it must be done by such an amount of overwhelming and unmistakable evidence as to render it impossible to be otherwise, but the evidence must be such as to satisfy the human mind, and leave the careful and guarded judgment of the court, free from any conscientious and perplexing doubts as to whether the charge be proved or not. If, after a careful examination of all the competent testimony, such doubts remain immovable, it is clearly our duty to give the defendant the benefit of such doubts, and to refuse the prayer of the complainant."

However, a suit for dissolution of the marriage contract has, by the great weight of authority, been regarded as a civil proceeding. Our Code, concerning the burden of proof in civil cases, applies to divorce suits. In an early case in this state it was held that:

"In a suit for divorce, brought upon grounds that involve a criminal charge against the defendant, it is not necessary to prove the allegations constituting such charge beyond a reasonable doubt. It is sufficient if they be established by a preponderance of evidence." Smith v. Smith, 5 Or. 187, Syl.

From a valuable work on trial evidence we quote with approval:

"The evidence to authorize a divorce on the ground of adultery need not be direct, but if circumstantial the circumstances must be such as would lead the guarded discretion of a just mind to the conclusion of the truth of the facts. The circumstances are to be taken together and when combined must tend to establish the following three facts: (1) The lustful disposition of the party charged towards the alleged paramour; (2) a like disposition on the part of the latter; (3) the opportunity to commit the act. These three facts must be reasonably approximate in point of time. The proof must sustain an inference of actual connection. * * * " 3 Abbott's Trial Evidence (3d Ed.) pp. 2033, 2034.

In discussing the necessary degree of proof to establish the flagrant act, with adultery as the ground for divorce, courts and text-writers have frequently observed that:

"Where the facts relied on to establish adultery may import innocence as well as guilt, they must be held to import innocence." 19 C.J. 125.

The same rule is here stated:

"Circumstances susceptible of a reasonable interpretation consistent with innocence and which do not lead to guilt by a fair inference as a necessary conclusion are insufficient." 3 Abbott's Trial Evidence (3d Ed.) p. 2034.

To similar effect is Herberger v. Herberger, 16 Or. 327, 14 P. 70.

Adultery has been inferred from the fact of occupancy by the parties of the same bed at night. State v. Welch, 41 Or. 35, 68 P. 808; Hall v. Hall, 43 Or. 619, 79 P. 141; Rawson v. Rawson, 37 Ill.App. 491; Lambert v. Lambert, 165 Iowa, 367, 145 N.W. 920; Shufeldt v. Shufeldt, 86 Md. 519, 39 A. 416; Fischer v. Fischer, 131 Mich. 441, 91 N.W. 633; Dunn v. Dunn (N.J.Ch.) 21 A. 466; Leyland v. Leyland (N.J.Ch.) 16 A. 177; Schreiber v. Schreiber, 3 Misc.Rep. 411, 23 N.Y.Supp. 299.

"Adultery may be established by the fact that the parties occupied the same room at night * * * in the absence of an explanation of the incriminating circumstance." 19 C.J. 140.

To like effect see Rickard v. Rickard, 9 Or. 168.

The following authorities taken from 19 C.J. p. 140, note 5, are in point: Mosser v. Mosser, 29 Ala. 313; Holden v. Matteson, 38 App.D.C. 128; Foval v. Foval, 39 Ill.App. 644; Names v. Names, 67 Iowa, 383, 25 N.W. 671; Crane v. Crane, 128 Md. 214, 97 A. 535; Kerr v. Kerr, 134 A.D. 141, 118 N.Y.Supp. 801; Langstaff v. Langstaff (Ohio) Wright, 148; Griffin v. Griffin (Tex.Civ.App.) 67 S.W. 514.

The alleged act of adultery charged in the indictment is the same act averred in the complaint for divorce. The wife now invokes the verdict of not guilty returned by the jury in the criminal case for the purpose of defeating the charge of adultery contained in the complaint for divorce. The converse of her proposition has been held in Anderson v. Anderson, 4 Greenl. (Me.) 100, 16 Am.Dec. 237, where the court said:

"The record of the conviction upon an indictment for adultery is evidence, in a subsequent suit for divorce brought against the defendant by his wife, both of the marriage and of the adultery." Syl.

Likewise in the case of Randall v. Randall, 4 Greenl. (Me.) 326, it appears that the wife had been convicted of the crime of lewd and lascivious cohabitation with a man other than her husband. It seems that her paramour was convicted and sentenced for adultery committed with her. The court, after default was entered, admitted this evidence as sufficient proof of the crime of adultery charged as grounds for divorce. See Griffis v. Sellars, 19 N.C. 492, ...