Johnson v. Johnson

• Decision Date: 10 April 1911
• Citation: 80 A. 119,78 N.J.E. 607
• Parties: JOHNSON v. JOHNSON.
• Court: New Jersey Court of Chancery

80 A. 119

78 N.J.E. 607

JOHNSON

v. JOHNSON.

Court of Chancery of New Jersey.

April 10, 1911.

(Syllabus by the Court.)

Petition by Mabel Johnson for divorce from George Johnson. On final hearing, on pleadings and proof. Divorce denied.

Paul A. Queen, for petitioner.

Ellis L. Pierson, for defendant.

WALKER, V. C. This is an application for a divorce for adultery. The parties were married February 24, 1904, and the charge is that the defendant committed adultery on May 1, 1906, with a girl 14 or 15 years of age. The offense was a rape for which the defendant was apprehended, and on a plea of non vult was sentenced to six years in the New Jersey state prison, where he is confined.

For a rape committed by a husband a wife may have a divorce. In the law of divorce "adultery" is the voluntary sexual intercourse of a married person with one not the husband or wife of that person. Bish. M. D. & S. vol. 1, § 1502. Therefore rape is adultery on the part of the man, although not so on the part of the woman who is carnally known forcibly and against her will. It is so treated in the criminal law, and by every process of right reason should be, and I believe is, so treated in the law of divorce.

The Supreme Court of Iowa, in State v. Sanders, 30 Iowa, 582, said: "To constitute the crime of adultery as against the man, the consent of the woman to the carnal intercourse is not indispensable; but the offense may, as against him, exist though the connection was effected by force and against her will."

In Commonwealth v. Bakeman, 131 Mass. 577, at page 578, 41 Am. Rep. 248, the Supreme Judicial Court of Massachusetts, said: "When a crime charged is one which consists in the concurrent act of two or more, such as conspiracy, such joint action must be alleged and proved. But adultery is not such a crime. One person may be alone guilty of it The act of sexual intercourse by a married man with an unmarried woman, or by an unmarried man with a married woman, is adultery in the man without regard to the guilt of the woman. It is an act committed by him, between him and the woman, although she is not the criminal or conscious participant. And it is not less adultery that it is also rape. The offenses are different in the nature of the wrong done, and in the facts which constitute them. Neither includes the other; and a defendant may be convicted of either without allegation or proof of some fact essential to the other. Carnal knowledge of a woman is the fact common to both; if it is with force and against her will, the crime is rape, and the fact that she is married is immaterial; if she is a married woman, the crime is adultery, and the fact that it is by force is immaterial. That a man cannot commit rape upon a married woman without also committing adultery only shows that he commits both crimes by one act which includes all the elements of both."

The guilt of the defendant in the case at bar clearly was made out. The proof came from the young girl who was raped, the physician who examined her after the act, and other corroborating circumstances.

For the crime mentioned the offender was indicted and pleaded non vult. That fact was elicited from the defendant on his cross-examination, and the question is: What is the effect of that plea in this case?

Now, the plea of non vult Interposed by Johnson to the crime of rape is a confession amounting to a conviction. In State v. Henson, 66 N. J. Law, 601, 50 Atl. 468, 616. Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals, adopts the distinction between the terms "conviction" and "judgment" made by Mr. Justice Gray of the Massachusetts Supreme Court, as follows: "The ordinary legal meaning of 'conviction,' when used to designate a particular stage of a prosecution triable by a jury, is the confession of the accused, in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while 'judgment' or 'sentence' is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained."

And again in State v. Henson, speaking of the effect of a plea of non vult, Mr. Justice Van Syckel says, at page 609 of 66 N. J. Law, at page 471 of 50 Atl.: "In our Supreme Court, in a case decided in 1884. and not since called in question, it is held that a plea of nolo contendere is equivalent to a plea of guilty, the only difference in the significance of the two pleas being in the force each has upon a collateral proceeding. Peacock v. Hudson Sessions, 46 N. J. Law. 112."

The defendant's plea of non vult to the indictment for rape was certainly admissible in this case to discredit his testimony when he took the stand in his own behalf; but was it also admissible as being a declaration contradictory to his statement that he was not guilty given in evidence, on oath, in this cause?

In Hill v. Maxwell, 77 N. J. Law, 766, 73 Atl. 501, the Court of Errors and Appeals held such a plea (non vult) to an indictment to be evidence in a civil suit to affect the defendant's credibility as a witness but left undecided the question whether the plea extended to contradict anything previously testified to by the witness.

Mr. Justice Van Syckel in his opinion in the Henson Case, ubi supra (66 N. J. Law at page 609, 50 Atl. at page 471) said: "The books agree that the only advantage the defendant obtained by this plea (nolo contendere) is that he is not estopped to set up his innocence in an action based upon the same state of facts."

The effect of the plea under discussion is well stated in 12 Cyc. at page 354, as follows: "A plea of nolo contendere, which is still allowed in some jurisdictions, is an implied confession of the crime charged, and, as regards the case in which it is entered, is equivalent to a plea of guilty, except that it gives to the accused the advantage of not being estopped to deny his guilt in a civil action based upon the same facts as he would be upon a plea of guilty."

The difference between the plea of guilty or non vult to an indictment was, and is, that the former estopped the defendant from entering a plea of not guilty in a civil suit based upon the same facts, but the latter plea would not estop the defendant from having his plea of not guilty; in other words, of trying the issue out with his adversary in the civil suit. Formerly the plea of non vult was not admissible in evidence in the civil suit because it could have no effect.

The defendant could not be a witness in his own behalf, and, not being a witness, he was not subject to impeachment. Now, however, the defendant may be a witness, and, taking the stand and being sworn and testifying in his own behalf, he subjects himself to all the rules of evidence in regard to witnesses, and his character may be impeached and his credibility may be affected by any evidence that tends to discredit him. Disque v. State, 49 N. J. Law, 249, 8 Atl. 281; Crosby v. Wells, 73 N. J. Law, 804, 67 Atl. 295.

Thus we see that the law which formerly prevented the admission of a plea of non vult in evidence has been changed so that the plea is now admissible under certain circumstances, namely, to impeach a witness. The maxim, "Cessante ratione, cessat ipsa lex," would seem to apply; and, as an illustration, there are apposite remarks of the Supreme Court to be found in Powers v. Totten, 42 N. J. Law, 442, at page 445, to the effect that, the reason of the law ceasing, the law itself ceases.

Still, it is unnecessary to decide in this case whether the plea of non vult may be used substantively on the issue as a declaration of the defendant contrary to his sworn statement herein, or, in other words, as a confession of guilt, for there is abundant evidence in the cause to establish his guilt, without such resort to the plea.

In this case I will confine the effect of the defendant's plea of non vult to the affecting of his credibility as a witness; but I desire to say that in that respect it has a twofold aspect: (1) It affects his credibility generally upon the...