Nicely v. Nicely
| Citation | 94 S.E. 749,81 W.Va. 269 |
| Decision Date | 06 November 1917 |
| Docket Number | 3340. |
| Parties | NICELY v. NICELY. |
| Court | West Virginia Supreme Court |
Submitted October 30, 1917.
Rehearing Denied Jan. 15, 1918.
Syllabus by the Court.
Where on a bill for divorce by husband against wife the evidence tends to show a conspiracy inaugurated either by the plaintiff or by another to entrap the defendant and to place her in some situation or under such circumstances as will furnish grounds for charging her with adulterous conduct, and the evidence of any of those engaged therein is relied on by the plaintiff, the defendant is entitled to put in evidence all the facts and circumstances connected with such conspiracy, not only on the question of her guilt or innocence, but as tending to impeach the testimony of the inculpating witnesses against her.
Though circumstantial evidence is admissible and often regarded sufficient to establish the fact of adultery, nevertheless it must be so clear and strong as to carry conviction of the truth of the charge, and, if it does no more than raise a suspicion of unchastity, it should be treated as insufficient.
Appeal from Circuit Court, Wood County.
Bill for divorce by Perry Nicely against Florence May Nicely, with cross bill by defendant. Decree for plaintiff, and defendant appeals. Reversed, decree entered for defendant, and cause remanded.
J. W Vandervort and R. E. Bills, both of Parkersburg, for appellant.
T. A Brown and A. D. Ireland, both of Parkersburg, for appellee.
Upon a bill by husband against wife for divorce a vinculo upon the ground of adultery, and a cross bill answer by wife against husband denying the adultery charged and alleging adultery on his part and cruel and inhuman treatment and desertion by him, and praying for a decree of divorce a vinculo and for alimony and for general relief, the court below by the decree complained of, granted the plaintiff the relief prayed for dissolved the bonds of matrimony, and thereby also barred defendant of all dower and marital rights in plaintiff's property, and awarded him costs against her.
The questions presented upon this appeal are, first, whether the decree is justified by that clear, positive and satisfactory proof always required in such cases; and, second, if the decree be erroneous for lack of such evidence, whether defendant on either of the grounds alleged in her cross bill answer is entitled to a divorce a vinculo or a mensa from plaintiff, and to alimony or to any relief.
On the first issue presented we have examined the evidence with great care, and find ourselves unable to reach the same conclusion arrived at by the learned and painstaking judge of the circuit court.
Both parties had been previously married and had grown children married, by their former spouses. They had been married only a little over a year when the bill was filed; the marriage took place on September 20, 1914, and the bill was filed at November Rules, 1915. They lived and cohabited together from the time of their marriage up until about the time of the institution of this suit, and while there is some evidence that he was not as dutiful to her in sickness, and at other times as he naturally should have been, and failed to provide her with clothing suited to her and his station in life, there is no charge or evidence of any trouble between them.
Some two or three weeks before the bringing of this suit plaintiff absented himself from his home, telling his wife that he was going on business to the state of Alabama. Whether he did in fact go to that state does not positively appear; defendant gave it as her belief that he did not go to Alabama, and though he was afterwards put upon the witness stand to testify briefly on his own behalf, he makes no mention of his absence, and gives no account of any trip to Alabama or elsewhere. The only charges of infidelity made against defendant are that on or about October 25, 1915, and at divers other times during that month she committed acts of adultery at plaintiff's residence with a man to plaintiff unknown; and nowhere else in pleadings or proof or otherwise is there the slightest aspersion cast upon the previous and presumably good name and reputation of this woman.
But the record discloses that during the supposed absence of plaintiff in Alabama a married son of his, inspired thereto by some one, or acting on his own initiative, by whom or how he does not attempt to explain, for he was not put upon the witness stand, began to lay plans and employ agents to entrap defendant. Whether Boso, whose evidence is principally relied on by plaintiff, was one of those agents, is not very clearly disclosed by the evidence, but to say the least of it, it morally convinces us that he was, notwithstanding the court would not permit defendant to show the fact because she could not connect plaintiff with his employment. But the fact is that on the night of October 25, 1915, when young Nicely procured the arrest of defendant he took with him two lawyers, one of them the attorney employed to prosecute this suit, the other his law partner, who the evidence shows was employed to conduct the raid made on Mrs. Nicely's home, and also two constables also employed by him, and together they all went to the Nicely home after dark, and, by some arrangement or coincidence, they arrived there just as Boso arrived, and although those who testified say they could not recognize him in the dark, they say they did recognize the form of a man entering the premises of Mrs. Nicely, and that they at once returned to town, where Deem, the constable, accompanying them on this trip, procured a warrant for defendant and one John Doe, charging them with adultery, this without having recognized the man, whether it was defendant's husband, or a neighbor, or some one entering on legitimate business.
Having procured the warrant, they employed another constable, and paid both sums of money far beyond their legitimate fees as public officers, and returned to the Nicely home about eleven o'clock, where these constables for an hour or two patrolled the grounds about the house, in an endeavor to see or hear something that was transpiring on the inside of the house between the occupants. They say they saw nothing because the blinds at the windows were down, but they heard foot steps and some talking which they could not understand, and one of them says he heard sounds as if kissing was going on, the other says that he did in fact hear kissing. As the blinds were down and the doors shut, it strikes us that it must have been a very remarkable osculatory performance, if it in fact took place, which is denied by Mrs. Nicely and not proven by Boso, the other party. Moreover, they say that as the lights were turned out, the door was opened, and as Boso was about to emerge, they made their entrance, one of them seizing Boso, who claims to have been knocked down by him, the other taking charge of Mrs. Nicely. Boso was allowed to make his escape, though both constables were armed and prepared for the occasion. He was seen by them going out the front door and was followed at least to the porch, and was seen by them at the gate. He was not even commanded to stop, and no attempt was ever afterwards made by any one to procure his arrest, and finally he was made the star witness for plaintiff in this case. After arresting Mrs. Nicely and getting her promise to appear at the justice's office the next day, they released her and afterwards lawyers and constables met at the home of young Nicely, and from there they all went back to town in Nicely's automobile.
Respecting the witness Boso the evidence shows that almost immediately after plaintiff absented himself on the occasion in question admittedly a perfect stranger, he made his appearance at the Nicely home representing himself to be a photographer, and engaged in the business of enlarging pictures. On the first visit he found her at work in the garden. From there he followed her into the house where she arranged with him to enlarge a picture she had of her old home, and at another visit the picture of her daughter. He took the pictures,...
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