Graham v. Graham

We have nothing to do with the questions of good taste nor of' abstract morality involved in any of the alleged transactions between the defendant and the co-respondent in this case. We are to examine the evidence and see if it supports the finding of adultery on the 16th day of October, 1912—not whether we think the co-respondent acted properly in visiting this woman on that date; and in this view of the question it is important to note the attitude of the trial justice in examining the co-respondent, who was called as a witness in behalf of the defendant. The witness had answered frankly in reference to his relations with the defendant—had testified positively that he had never committed adultery with her; that he had never had any improper relations with her. The court then took the witness in hand, and brought out that he was a second cousin; that the defendant “is my mother’s own cousin.” Following this the witness was asked in relation to some letters he had written to the defendant, and which will be considered later, and then the "court asked:

“What is the reason, Mr. Anderson, when you went there, that you crawled through a'window?”

There was no evidence that the co-respondent crawled in. The window appears to have been a low French window, and the defendant said to him, “You can step right in this way” (folio 134); and there is nothing to indicate that this was not as available a method of entering the place as any other. The court then continued:

“Whatever induced you to go in that way?”

The witness having answered the question, the court continued:

“And on the opposite side of the house from the neighbor’s house? * * * You were in this house some hours without any light with Mrs, Graham? * * * It is compromising the woman in case it was known that that thing had happened. Suppose you knew that two people who had been about together a good deal, and one of them was a married woman and having trouble with her Husband, were found in that situation; wouldn’t you think it was suggestive or wrong, of compromising and making people suspect? You knew tfiat, didn’t you? * * * What other conclusions would you draw from two people, if they had spent three hours together in a dark house, and then, when some one comes there, he runs away and loses his hat—what other conclusion would you draw than that there was wrong conduct he-

tween the two? * * * What made yon do it? * * * Wasn’t it very unfortunate that she went to the man that she was suspected of wrong conduct with? You knew there had been conversation about your conduct with her, didn’t you? You knew, on account of the conversation with Mr. Graham? * * * Didn’t you know, then, that it was unfortunate for you to be the man that was there to give her counsel?”

It is easy to see from these questions, the most of which were answered substantially in the affirmative, the mental attitude of the court. Abstractly it will be assumed that they indicate the correct moral standard; but the question at issue is not one of abstract morals. It is one relating to a statutory offense, and the fact that the co-respondent at the time of the trial might be convinced that it was wrong for him to have acted as he did on this particular occasion has no tendency to prove that he committed a crime at the time alleged, and it is easy to conceive how he might, with the best of intentions, have done just what he says he did, and no more than he says he did. Honest and honorable men have done indiscreet things in an effort to lessen the sum of human misery, and they have been misjudged. Putnam is a small rural community. The defendant is 17 years older than the co-respondent. The latter was about 18 years of age when she was married. They had always known each other, and, so far as appears, both the defendant and her husband had been on good terms with the co-respondent up to within a year1 or so of the time of this alleged adultery, and the co-respondent had lived in the family as a hired man, performing the work incident to such employment in a rural community. So far as appears, the witness was the only male relative of the defendant in the immediate locality, though it appears she had a brother some 15 miles away; and having been a member of the family, and knowing the treatment to which the defendant had been subjected, what was there unnatural in the fact that she should go to this cousin for advice and counsel ? What man, under, such circumstances, would refuse to consult with her, even though he was obliged to escape the attention of local- gossips, to meet her under the circumstances set forth in the evidence?

The evidence discloses clearly enough that the plaintiff is not coming into court clean-handed. His own brother testified that he knew the plaintiff was going with a girl, and several of his witnesses indicate something of the same character, and the plaintiff had offered $1,000 to be relieved of the presence of the defendant, and when she had promised to accept the terms he refused to perform, and it appears had deceived her into believing that he had gone away, while he was in fact attempting to procure evidence which would save him from parting with his $1,000 and at the same time relieve him of his obligations as a husband. That the defendant should feel the need of advice under such circumstances, and that she should go to her cousin for such advice, is certainly not strange, nor does it indicate moral turpitude on her part. The arrangement was made to meet at the home of the co-respondent’s father, and there is no dispute that the defendant went there to meet him for -the purposes of this interview over her troubles. There was company at the co-respondent’s home,

Measured from the standpoint of conventional morality, which looks only to the form, it was undoubtedly a mistake for the co-respondent to go to the defendant’s home late in the evening and to stay there for several hours without a light; but their purpose, as they explain it, was to be alone for the purpose of talking over the defendant’s troubles, and with a hostile neighbor, who appears to have had a faculty for jumping at conclusions from a very small foundation of facts, it may have been equally as prudent to sit in the dark as to have a light to attract the attention of this neighbor. Both the defendant and the co-respondent, who were there, testify positively that they did not commit adultery, and, aside from the fact that there was the opportunity, there is absolutely no evidence of any desire or intent to commit adultery on this occasion. True, one of the plaintiff’s witnesses was permitted to testify that the plaintiff told him that on looking over the house, after the co-respondent left, he found one of the beds mussed; but the plaintiff had two witnesses with him at the time and did not let them into the house, and we have no direct testimony upon this point. It is hearsay, and the party making the statement, the plaintiff in this action, was incompetent. Section 831, Code Civil Procedure. Where or how-the bed was mussed—if this was in fact true—is not disclosed, and there is an absolute lack of competent evidence of anything which would indicate that there had been any misconduct on the part of the defendant' and the cp-respondent on the night of October 16, 1912, aside from the admitted fact that they were alone in the kitchen of the defendant’s home from about 9:30 until midnight, at which time the plaintiff appeared, and for the most of the time at least without a light.

[2] Clearly the mere opportunity of committing adultery is not eproof that the wrong has been done. As we understand the rule, it is necessary, not only that there should be the opportunity, but that there should be evidence of a desire and purpose. There should be something in the conduct of the'parties from which it may be properly inferred that, given the opportunity, they would indulge their passions; and it is important, therefore, to consider the evidence in relation to the previous conduct of these parties.

The first witness called was the meddlesome neighbor, a woman who lived 20 or 30 rods from the defendant’s home. She testified that in the fall of 1910 she saw the defendant and the co-respondent go into the plaintiff’s barn between the hours of 8 and 9 in the morning, and that she saw them come out nearly an hour after, and that the plaintiff was away from home at the time. On her cross-examination it developed that she swore that the plaintiff was away, because it was hi§ day to be away; but she had no recollection of seeing him go away, and in fact knew nothing about it. It also appeared that the co-respondent was at the time employed by the plaintiff and lived

The next witness'called in this effort to show the “inclination of the parties to commit adultery” was a brother of the plaintiff. This witness testified that in the fall of 1910 he was present at a place' known as “Quinn’s Camp”; that he got there about 8 o’clock; that Tom Anderson, the co-respondent, and Mrs. Graham, were not in the room where they were singing; that about 9 o’clock he went out upon the veranda and lit a match, and found Mrs. Graham in Tom Anderson’s lap; that—

“she had her arms around his neck, holding his head to her hosom, trying to shield his face, and we lit a match to find out who it was. I found out it was Tom Anderson, I went back into the house and left them. The plaintiff was not there.”

This witness says that Mrs. Graham came into the house at 12' o’clock on the night in question, and that no one was with her. On cross-examination this witness said:

“I did not tell my brother about this affair; no reason to. I didn’t think enough of it to call my brother’s attention to it.”

And the only fair inference from the testimony is that there was eu camping party, and these two people were on the veranda, where people were at liberty to appear at any moment, and that when the witness wenf out made some effort to hide the identity of the co-re

The witness Allen next called, went into details about this scene on the porch at Quinn’s Camp, but testified positively that Mrs. Graham was not sitting in Anderson’s lap, though he adds that she might just as well have been; and he says that when the others came out, and the match was lighted to discover who was there, that they “were all laughing and talking,” and it is plain that it was not considered anything out of character in the society in which these parties were moving. This occurred in August or September, 1910, two years and more before the alleged adultery, and it is interesting to note, in the unfoldment of the evidence, how the intervening time is filled in— how this alleged Lothario and this alleged adulteress, living in a small community, where their every act would be noted, conducted themselves.

The next witness called, a boy of 16, testified that some time in July, 1912, he was passing an open-fronted shed used by the community as a toolhouse; that he heard some one speak, and that he walked to the entrance, lighted a match, and saw the defendant standing there looking at him. This was about 10 o’clock in the evening.. The witness says he did not speak; that Mrs. Graham did not speak. He is quite sure that no one else was present; that he could see all over the interior of the shed; and he says that he heard no one running away or moving, and that he at no time heard more than one voice, and that this was, he .thought, a woman’s voice. What possible bearing this can have upon the defendant’s alleged adulterous, purpose it is difficult to comprehend.

The next witness, and the only other witness who testifies in behalf of the plaintiff as to any act between the episode in 1910 and the alleged adultery in October, 1912, is George H. Sanders. This witness testifies that he lives in Ft. Edward; that he recollects an occasion in the fall of 1911, about September, being at Ticonderoga; that he saw Mrs. Graham there; that she was at her brother’s, and that Anderson was with her; that they left the brother’s at about 9 o’clock in the evening; that no one else was with them; that the plaintiff was not there; that it was about 15 miles from Ticonderoga to the

This same witness testified to another time that he saw the defendant. He visited at the home of the Grahams in November, 1911. Anderson was present. They all played cards. When the game was over, Graham left the room and returned, bringing a check. He is quoted as saying that he owed the co-respondent the amount of the check:

“There is a check for that amount; take it and get out.”

The witness says:

“He says, T have1 always trusted you, and I supposed you were faithful to me.’ Anderson asked him what was the matter. He accused him of being intimate with his wife. Mr. Anderson said he lied. Mr. Graham told him that he did not lie; that he had it in black and white. He had letters he had written to his wife. He didn’t deny them; that is, Mr. Anderson didn’t say anything.”

Down to this time there is clearly no evidence of any disposition on the part of either the defendant or the co-respondent to commit adultery; not a single lascivious act is brought out, and, when the plaintiff accused Anderson of having been intimate with his wife, Anderson promptly denounced the assertion as a lie, but did not deny as he does not now deny, that he wrote the defendant some letters. When these alleged letters were written does not appear from the plaintiff’s witnesses; but Mrs. Graham fixes- their date as of September or October two years ago, so that the alleged letters must have been practically of the same daté as the Quinn Camp episode, and the-learned justice, referring to that, says:

“I shall not hold any wrongdoing from the occurrence there, except that it-shows acquaintance.”

We thus have a period of practically two years preceding the 16th day of October, 1912, during which time not a. single act is pointed out which would justify any fair inference that either Mrs. Graham or Mr. Anderson had any inclination to commit adultery. Not a single fact is disclosed which is not consistent with absolute innocence; for, though there is some suggestion that Anderson had been seen to lie upon the defendant’s bed with her, the undisputed evidence of the plaintiff himself is that he was present at the time and that he made no objection to it, and the explanation is made that this occurred when the defendant was ill, and that it was on a Sunday, and that it was in the presence, not alone of the plaintiff, but of his daughter, who it was conceded would testify, if called, that she had never seen any improper acts upon the part of her mother or Anderson.

“accused him [Anderson] of things that were in the letters. I don’t know as I can remember it all. He asked her if she ever took an alcohol hath. He claimed there was something of that kind in the letters; that he was going to be away, and he was glad, and he would come down and put her to bed and give her an alcohol bath.’’

The witness was then asked :

“Did he state anything from the letters about arranging the curtains?”

And answered:

“To be there, and have a signal in the window; whether it was curtains, or light, I don’t know.”

At this point the court took up the examination and inquired who used those words. The witness replied:

“Mr. Graham claimed that that was in the letter; he stated to Anderson that was in the letters.”

The court then asked if either of them made any reply, and was answered:

“Hot to deny it.”

The witness then stated his recollection of the further conversation between the plaintiff and the defendant, wherein the defendant accused the plaintiff of doing the same thing she was doing, that she was no worse than he was, and that the plaintiff demanded to know what was meant by a reference in the letters to getting rid of Mr. Graham and having the place, saying that there was something of this kind in the letters. It does not appear, however, that either of them adtnitted anything of this kind, and the witness then recounts

The plaintiff admits that while .she was a substitute mail carrier, and while Anderson was employed by her husband, and was engaged in carrying cream for the latter, she asked Anderson, whom she saw at home every night and morning, to write her letters and to drop them in some of the letter boxes along the road, and that she would find them and thus know what he was doing during the day; that she suggested this just for fun, and she apparently found a certain amount of diversion in looking through the boxes to find these missives. She admits that she thought the suggestion made in one of these in reference to giving her an alcoholic bath was not proper; but Anderson says it was made in connection with the fact that the defendant’s daughter bathed her arm every night after the trips carrying the mails, and that he had this in mind. It does not appear, however, that Anderson ever wrote any more letters after this particular one which the defendant thought improper, and the mere fact that a green country boy makes a vulgar suggestion, and which the defendant did not approve, is clearly hot evidence of the desire for adultery on the part of the latter, which would give importance to the meeting at her home on the 16th of October, when she was in trouble and was seeking advice.

And the suggestion of signals is very far-fetched, when it is remembered that Anderson was in the émploy of the defendant, and had free access to the house, where he lived, and did not need any signals to know when the plaintiff and his daughter were away. The probability is that this woman, working .hard all the time, had some need of diversion, and this rather silly expedient of asking Anderson, her cousin, to write notes to her and to drop them in some of the rural delivery boxes along his way, that she might find them and pick them up, was hit upon for this purpose, and which could have done no harm, except for the plaintiff’s desire to get rid of his own obligations. But, whatever there was of this correspondence, it took place two years before this alleged adultery, and in the two years intervening there is not a single act' which tends to characterize the relations between Anderson and the defendant as adulterous in its purpose.

[3] The improbability of the proposition that this adulterous desire could exist and not manifest itself in some overt act, which would attract the attention of some of the gossips, is so great, and the character of the supporting testimony is so. questionable and uncertain, and the meeting of October 16th being so devoid of all evidence, except as to the opportunity, that we. are unable to see how the judgment

The interlocutory judgment appealed from should be reversed. All •concur; KELLOGG and LYON, JJ., in result.