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Roe v. Roe

40 N.Y. Super. Ct. 1 8 Jones & S. 1 Court N.Y. Super. Ct. Decision date 1875-08-03 English

Contents

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JASPER P. ROE, Plaintiff and Respondent, v. CHRISTINA ROE, Defendant and Appellant.

Headnote

I. DIVORCE A VINCULO.
1. Witness. Party defendant. Act of 1837, ch. 887.
1. Incompetent as a witness for any purpose other than proving the fact of marriage.
II. EVIDENCE.—HANDWRITING.
1. Comparison, proof of by.
a. What ma.y he compared.
1. The writing of the document in dispute alleged to havo been written by a witness on the stand may be compared ' with the writing of words contained in said document written hy such witness while on the stand.
%. Experts, proof by.
1. They may testify to the condition and appearance of the words, and of the letters, and characters, contained in the writings, and point out, and explain similarities and differences.
1. Objections to evidence by an expert.
1. What not maintainable on appeal,
a. An objection at the commencement of his examination, to questions designed to show his business, his ability, knowledge, and skill, on the ground of immateriality, is not.
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6. A general objection “to this class of evidence” to questionshaving such design in view is not.
1. If subsequent questions and answers exceed the limit to which an expert can testify, further and specific objections should be interposed.
Before Freedmar and Sedgwick, JJ.
Decided August 3, 1875.
This was an action for a divorce a vinculo matrimonii. On the trial the plaintiff called the alleged paramour, and in the course of the direct examination showed him a letter and asked him whether he wrote it. The court instructed the witness he might decline to answer whether he wrote the letter or not. The witness declined to answer on the ground that his answer would criminate himself. On cross-examination, defendant’s counsel asked him to write a' little, whereupon the witness wrote the address and first line of the letter in question. Thereafter plaintiff called as a witness, Henry M. Parkhnrst, when the following evidence was given by him, objections taken, and rulings made:
“I have, for a long time, been engaged in the business of writing and seeing other people write.
Q. And examining handwritings and comparing them %
[Objected to as immaterial. Objection overruled. Defendant excepts.]
A. I am familiar with handwriting, and differences of handwriting.' [Defendant’s counsel objects to this class of evidence. Objection overruled. Defendant excepts.] I have no doubt, whatever, that the letter, which I have in my hand, and that sentence, which was written by the witness here, were written by the same person, in the same hand ; I form this opinion, somewhat. from the general appearance, but more particularly, from the peculiar forms of the letters and
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their peculiar connections; some of the letters are made different in the two, but there are very remarkable peculiarities which are identical in the two, and many of them ; I have no doubt upon the subject at all$ I have no doubt the superscription upon the envelope is the same handwriting.”
Plaintiff then read the letter, its envelope, and the slip written on by the former witness on the trial, in evidence.
The letter had a tendency to prove the adultery charged.
After the plaintiff had rested, defendant’s counsel called the defendant as a witness on her own behalf; and evidence was given, objections raised, and rulings made, as follows :•
“ I am defendant. I saw a man named Henry Miller once ; I forget the day of the month I saw him ; it was in April; it was at the time Mr. Jessee was there; that was the only time ; I never saw him but once ; I never bought any prize packages, and I didn’t know what he was doing ; I never received any letter.”
[Mr. Hirsoh jn-oposes to ask the witness whether she ever had any adulterous intercourse, with Henry Miller. Objected to as incompetent. Objection sustained. Mr. Hirsoh stated that he proposed to examine the witness as to what took place, in the presence of herself and Mr. Roe, at the time Mr. Jessee went there with the plaintiff. Objected to. Objection sustained. Exception by defendant.]
. The court also struck out all the evidence of the defendant, to which ruling the defendant excepted.
There was in addition to the testimony of the paramour, a great deal of circumstantial evidence in support of the charge of adultery.
The court below found in favor of the plaintiff ; and judgment of divorce a vinculo was thereupon entered in his favor.
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• From the judgment, defendant appealed.
Samuel Hirsch, attorney, and of counsel for appellant, urged:
I. It has been uniformly held in.actions of this kind that while to authorize a divorce for adultery, direct testimony of the commission of the crime is not required, yet the proximate facts must lead, by fair inference, to a necessary conclusion—a conclusion so far inevitable that the supposition of innocence, can not by any just course of reasoning, be reconciled with it ( 17 Abb. Pr. Rep. 48 , anonymous ; Mulock v. Mulock, 1 Edw. Rep. 14 ; Hart v. Hart, 2 Ed. 207; Turney v. Turney, 4 Id. 566 ; Banta v. Banta, 3 Id. 295). The complaint itself is defective in not stating the acts of adultery with sufficient certainty (Pramagiori v. Pramagiori, 7 Rob. 302 ; also Wood v. Wood, 2 Paige Rep. 108 ). Where the evidence of adultery in an action for divorce depends on the testimony of defendant’s paramour, unsupported by other evidence, no decree will, be granted ; he is regarded as an accomplice, and his testimony subject to the objection of an accomplice ( 5 Rob. 611 ).
II. There is no proof of any adultery at .any time ' such as would warrant a decree for divorce (Myer v. Myer, 48 Barb. 114 ; Hamburger v. Hamburger, 46 How. 346 ; Ferguson v. Ferguson, 3 Sand. 307; Trust v. Trust, 11 How. 523 ). There can also be no decree for adultery committed after the filing of the bill. In this action the bill is filed or the action commenced April 11, 1873, the very day of the alleged meeting. The finding of fact in respect to the adultery is April 12, and after the.commencement of the action (Ferrier v. Ferrier, 4 Edw. 296 ).
III. It was error to allow thé witness Parkhurst, as an expert, to swear to the letter of Miller by mere comparison of the letter with a paper written by Miller, and marked for identification (Jackson v. Phillips, 9
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Cow. 94 ; Wilson v. Kirkland, 5 Hill, 182 ; People v. Spooner, 1 Johns. 343 ; Bar v. Coleman, 13 Barb. 42 ; Tillford v. Knott, 2 Johns. Chan. Cases, 211; Jackson v. Van Duzeu, 5 Johns. Rep. 144 ; Haskin v. Stuyves ant, Anthon. Nisi Prius, 132 ; Van Wyck v. McIntosh, 14 N. Y. [4 Ker.] 439).
IV. The testimony of the defendant should not have been stricken out, and she should have been allowed to give the evidence offered, (a.) Such admission would not necessarily have been in contravention of the provisions of the act of 1867 (Laws of 1867, ch. 887, § 2 ; §§ 388 and 399 of Code; Wehrkamp v. Wiilets, 1 Keyes, 250; Shoemaker v. McKee, 19 How. 86 ; March v. Potter, 30 Barb. 506 ; Chamberlain v. People, 23 N. Y. [9 Smith] 85; Rivenburg v. Rivenburg, 47 Barb. 419 ). In this case, special attention is asked to the dissenting opinion of Judge Balcomb (1 Greenleaf on Evidence, 287, § 254).
Garretson & Mayo, attorneys and of counsel for respondent, urged:
I. As to the adultery, the law-does not exact, in cases of this nature, such precise and incontrovertible proof as it requires in many other actions. The direct fact need not be proven. It may be inferred from circumstances that lead to it as a necessary conclusion (N. Y. Sup'r Court, Ferguson v. Ferguson, 8 Sandf. 307 , citing Lord Stowell in Loveden v. Loveden, 2 Hagg. Consis. Rep. 1).
II. The statute making parties to actions competent as witnesses does not apply to cases brought by husband or wife, the one against the other, for divorcement on the ground of adultery. The defendant’s testimony was properly excluded (Smith v. Smith, 15 How. 165 ; Sweet v. Sweet, Id. 169 ; C. v. C., 25 Id. 432).
III. The letter purporting to have been written by Henry Miller to the defendant was written by him to
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her. The testimony of Henry M. Parkhurst refers to a comparison of the writing called for by the defendant’s counsel from Henry Miller on the examination of that witness, with the letter in proof and appearing at large in the case. The rule which in this state rejects proof of handwriting of a paper sought to be put in proof by comparing it with the handwriting of another paper proven to have been written by the same person, applies solely where it is attempted to compare the handwriting of the paper sought to be introduced with that of one which is immaterial to the issue (Van Wyck v. McIntosh, 14 N. Y. [4 Ker.] 439). Such is not this instance. Here a portion of the very letter itself is introduced by the defendant’s counsel, and the evidence is perfected by a comparison of what was so written with the same paper in its entirety.

The evidence fully sustains the finding that between the 1st day of May, 1872, and the 12th "day of April, 1873, the defendant did commit adultery with one Henry Milier. Direct testimony of the commission of the offense is not necessary, but circumstatial evidence which by fair inference irresistibly points to that conclusion is sufficient. Tested by this rule the facts testified to by the witnesses Maria Palmer, Celia Denning, Walker, and Henry Lewis, all of whom were properly admitted, would be sufficient even without the testimony of the paramour. The learned chief justice who tried the case below, had these witnesses before him, and not only heard their testimony, but also observed the manner in which they gave it. He was therefore even in a better position to judge of their credibility than the court at general term can be. Their testimony was not shaken or impeached, and aside from such contradictions upon collateral points as usually appear between the testimony of witnesses testifying to successive occurrences.

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it bears no intrinsic marks for which it could be discredited. As a whole it is wholly incompatible with defendant's innocence, and no inference other than that of criminality is possible from it.

The testimony of the defendant was properly excluded. Before the act of 1867 (ch. 887 of Laws of 1867), she would not, under the Code, have been a competent witness in her own behalf in an action for divorce (Rivenburgh v. Rivenburgh, 47 Barb. 419 ), and that act, though making the husband or wife of any party to an action as competent a witness on behalf of such party as any other witness, expressly provides that nothing therein contained shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery, except to prove the fact of marriage.

The first objection to the testimony of the expert on the question of handwriting is wholly untenable, and the second too general in its character. The authorship of the letter alleged to have been written by the paramour to the defendant, and claimed to have been found by the plaintiff in defendant’s possession, was materia], and a comparison of the handwriting of that letter with the few lines written by the paramour on the witness-stand at the request of the counsel for the defendant was to a certain extent permissible. The expert could properly testify to the condition and appearance of the words and of the letters and characters contained in these writings, and to point out and explain similarities and differences. If by subsequent questions and answers this limit allowed by law was transcended, a farther and specific objection should have been interposed. A genera] objection taken at the beginning “to this class of evidence,” or “on the ground of immateriality,” is not enough.

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The judgment should be affirmed.

Sedgwick, J., concurred.

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