McCrary v. McCrary

• Decision Date: 04 December 1920
• Docket Number: (No. 9384.)
• Citation: 230 S.W. 187
• Parties: McCRARY v. McCRARY.
• Court: Texas Court of Appeals

Page 187

230 S.W. 187

McCRARY v. McCRARY.

(No. 9384.)

Court of Civil Appeals of Texas. Fort Worth.

December 4, 1920.

Rehearing Denied January 22, 1921.

Appeal from District Court, Denton County; C. R. Pearman, Judge.

Suit for divorce by J. A. McCrary against Emma McCrary, in which the defendant by cross-bill also sought a divorce. From a judgment awarding a divorce to plaintiff, and giving him the custody of the only child, defendant appeals. Reversed and remanded.

McLean, Scott & McLean, of Fort Worth, S. M. Bradley, of Denton, and W. S. Ray and J. Lee Zumwalt, both of Dallas, for appellant.

Owsley & Owsley, of Denton, W. W. Alcorn, of Montague, and Sullivan, Speer & Minor, of Denton, for appellee.

CONNER, C. J.

Appellee sued appellant for divorce alleging that she had been guilty of adultery with one Dee Price. Appellant, by cross-bill, also sought a divorce, alleging cruel treatment, consisting of personal violence to her, and the charge of adultery alleged in plaintiff's petition. The cause was tried before a jury upon a general charge, which submitted only the issue of defendant's adultery. The jury returned a verdict for plaintiff. The court rendered judgment for plaintiff, and awarded him the custody of the only child of the marriage, John A. McCrary, Jr., a boy about six years old. The defendant has appealed. The division of the community property is not involved in this appeal; the parties to the suit having settled their property interests in accordance with the judgment below.

The appellee objects to the consideration of appellant's assignments, because they are not numbered from first to last in their consecutive order, as prescribed by rule 29, prescribed by the Supreme Court for the preparation of briefs in the Court of Civil Appeals (142 S. W. xii). The first assignment found in appellant's brief is numbered the "fifth," and the second assignment is numbered the "fourth." The third assignment is designated as the "first." This practice is in direct violation of rule 29, heretofore mentioned, and under such rule we would be justified in disregarding such assignments. Taylor v. Butler, 168 S. W. 1004; Bryant v. Traction Co., 52 Tex. Civ. App. 600, 115 S. W. 880. But we have concluded to consider them, even though in violation of said rule.

The fourth and fifth assignments allege error in the failure of the court to charge the jury that in this case the burden of proof was upon the plaintiff to establish the material allegations in his petition by full and satisfactory evidence. The court did give an acceptable charge that the burden of proof was upon the plaintiff to make out his case by a preponderance of the evidence, "and the evidence must be sufficient to satisfy the jury of the truth of the matters so alleged." We think the charge given was sufficient, and that it would have been error to have given the tendered charge. Article 4633, V. S. Tex. Civ. Stats., reads in part as follows:

"In all suits and proceedings for divorce from the bonds of matrimony, the defendant shall not be compelled to answer upon oath, * * * but the decree of the court shall be rendered upon full and satisfactory evidence, upon the verdict of a jury, if a jury shall have been demanded by either party, and if not, upon the judgment of the court affirming the material facts alleged in the petition."

This part of the statute has been construed by our Supreme Court and the Courts of Civil Appeals a number of times to be a direction to the court, and not as establishing a different rule to guide jurors as to the burden of proof. In Moore v. Moore, 22 Tex. 239, our Supreme Court, speaking through Judge Wheeler, said:

"The law has wisely enjoined upon the courts the duty of watching over these proceedings with the strictest scrutiny, and interposing to prevent abuses of the delicate and responsible power confided to them to dissolve the marriage contract. What shall be deemed sufficient cause of divorce must ever be matter of law; and the law has made it the duty of the judge to refuse a decree, unless satisfied of the truth and sufficiency of the evidence, by which those causes are established. * * * There must be the `full and satisfactory evidence, and `the verdict of a jury'; both must concur, before the court can lawfully proceed to decree a divorce. It is to the mind of the court, of course, that the statute intends that the evidence shall be `full and satisfactory.' Unless it be so, it is the duty of the court to set aside the verdict and refuse a decree. In decreeing a divorce, the judge does not proceed, as in other cases, upon the verdict of the jury, but upon his own judgment, after the jury, by their verdict, have affirmed the truth of the material allegations of the petition. The mind of the judge must be satisfied, not only of the sufficiency of the causes alleged, but of the truth and sufficiency of the evidence by which they are established, independently of the verdict."

To the same effect are the cases of Haygood v. Haygood, 25 Tex. 577; Barrow v. Barrow, 97 S. W. 120; Allen v. Allen, 128 S. W. 697; Speer, Law of Marital Rights, §§ 540 and 547; 9 Ruling Case Law, p. 328; 14 Cyc. p. 687. The two assignments are overruled.

The appellant cites a number of cases in support of her first assignment, complaining of the action of the court in refusing to give a peremptory instruction against plaintiff upon his cause of action. It was the duty of the trial court to refuse the decree, if, after the jury had found for plaintiff, the judge, in the exercise of his judicial discretion, did not find that the material facts contained in plaintiff's petition had been established by "full and satisfactory evidence." He had the power, though it was a trial by jury, to refuse either party a divorce, but not to ignore the findings of the jury and award a divorce to defendant. Grisham v. Grisham, 185 S. W. 959. In other words, the court's authority over the verdict of the jury in a divorce case is restrictive, and not independent; negative, and not affirmative.

In the view of the majority, and as indicated by our statutes and decisions cited, every decree dissolving the sacred rights of matrimony between two individuals must be based upon "full and satisfactory evidence." As said in the case of Lohmuller v. Lohmuller, 135 S. W. 751:

"In suits for divorce the same respect is not required for the verdict of a jury as in other cases, and the trial judge in decreeing a divorce does not proceed upon the verdict, but upon his own judgment, and, when the cause reaches this court, it, too, must be convinced that the evidence is `full and satisfactory,' before it will affirm a judgment."

It is therefore our duty to scrutinize the testimony closely, and from it determine whether or not the evidence in this cause fulfills the requirements of the statutes and of the decisions on that subject. It will not be improper, we feel sure, to first present as briefly as we may a general view of the case. In divorce cases the jurisdiction of this court is final, and an affirmance of the judgment below will constitute a perpetual judicial record that Dee Price, the corespondent named, was guilty of wrecking a home, and that the appellant in this case was guilty of adultery, the one crime by a woman for which it is said there is no forgiveness this side of Heaven. An almost certain consequence of that charge, and of such a decree, is to subject the woman to the scorn and contempt of her sisters and to the avoidance and disregard of all men whose confidence and esteem is most to be desired. The little boy, too, innocent though he is, is thereby deprived of a mother's love and forced to meet the ignominy that attaches to the mother who is an adulteress. In view of such consequences, and others that may easily be imagined, the three members of this court have carefully read the entire statement of facts in this case more than once.

In addition to the rule of the statute requiring full and satisfactory evidence before a decree of divorce in any case shall be entered, there is yet another rule that applies in the case before us. It is undisputed that no one was able to testify that he or she witnessed the commission of the act charged. On the contrary, it is conceded that the judgment and verdict rests alone upon circumstantial evidence. And while the crime of adultery, as well as other charges, may be proved by circumstantial evidence, yet because of the frequent miscarriages of justice in such cases, and of the frequent misleading inferences drawn from circumstances, our courts apply the following rule, quoted with approval by our Supreme Court as early as 1855:

"In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt; all the facts [that is, the facts necessary to the conclusion] must be consistent with each other and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, and no other person committed the offense charged."

See Henderson v. State, 14 Tex. 503, loc. cit. 514.

With the foregoing general observations, let us examine the circumstances relied upon in this case to establish the guilt of the appellant. The appellee, John McCrary, testified that he had been living in the town of Denton for 13 or 14 years; that he and appellant, Emma McCrary, were married on the 10th day of January, 1911; that he was engaged in running a plumbing business; that as a result of the marriage one child was born to them on April 19, 1913; that he was 24 or 25 years old when they were married, and 32 at the time of the trial; that he separated from his wife on the 14th day of May this year at Mineral Wells; that the reason...