Watkins v. Lord

BUDGE, C. J. This is an action of criminal conversation for debauching respondent’s wife. Judgment for damages was awarded in the sum of $2,500. From which judgment [355] and from an order denying a motion for a, new trial, this appeal was prosecuted. Appellant’s brief contains twenty-four separate assignments of error but it will not be necessary to discuss all of them. The third assignment: “3. That the court erred in refusing to compel the plaintiff to furnish the defendant a specific bill of particulars of the dates, places and times when the defendant carnally knew the plaintiff’s wife, if at all,” — is not well taken. Respondent, after appellant answered, furnished a bill of particulars to which the proof is sufficiently responsive. We have no statute providing for a bill of particulars in cases of this character. There are authorities holding that in such eases a bill of particulars may be required (Shaffer v. Holm, 28 Hun (N. Y.), 264; Tilton v. Beecher, 59 N. Y. 176, 17 Am. Rep. 337); but these cases arose under a statute which we do not have. The prevailing view, however, is that a charge of this nature may be alleged by a continuando and that “proof thereunder may be given of the wrongful act 'in issue, committed on any date within the time stated in the pleading, and within the period of the statute of limitations.” (Smith v. Meyers, 52 Neb. 70, 71 N. W. 1006; 21 Cyc. 1629, 1630; Yatter v. Miller, 61 Vt. 147, 17 Atl. 850; Long v. Booe, 106 Ala. 570, 17 So. 716; Johnston v. Disbrow, 47 Mich. 59, 10 N. W. 79; Lemmon v. Moore, 94 Ind. 40; 5 Ency. Pl. & Pr. 617, 618.) Moreover, there is nothing in the record to indicate that appellant was surprised or mislead or in any wise prejudiced by the refusal of the court to require respondent to furnish an additional bill of particulars. The fourth assignment predicates error upon the refusal of the court to permit respondent’s wife, over his objection, to testify against him. See. 5958, Rev. Codes, provides as follows: “Sec. 5958. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases; [356] “1. A husband cannot be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other nor to a criminal action or proceeding for a crime committed by violence of one against the person of the other.....” California and many of the other states have this identical statute, and the decisions thereunder are uniformly to the effect that neither a husband nor a wife can testify against the other without his or her consent, and that the rule admits of no exceptions other than those expressly specified in the statute. The supreme court of Minnesota in an early case, construing a statute identical in this respect with our own, said: “If this statute merely laid down the rule disabling the husband and wife from testifying for or against each other, it might be urged that it was only a statutory adoption of the common r law rule, and that it adopted also the common-law application of the rule, including the exceptions. But it also prescribes the application of, and defines and limits the exceptions to, the rule of disability. This excludes resort to the common law to determine how far the rule shall prevail, and what eases shall be excepted from it. So it is immaterial that the common law did or did not — though we know of no well-considered case holding that it did — admit the evidence of a wife against her husband, in a case like this. The statute does not.” (Huot v. Wise, 27 Minn. 68, 69, 6 N. W. 425; Wolford v. Farnham, 44 Minn. 159, 46 N. W. 295.) The statute has been similarly construed in the following cases: Krueger v. Dodge, 15 S. D. 159, 87 N. W. 965; Zimmerman v. Whiteley, 134 Mich. 39, 95 N. W. 989; Knickerbocker v. Worthing, 138 Mich. 224, 101 N. W. 540; French v. Deane, 19 Colo. 504, 36 Pac. 609, 24 L. R. A. 387; Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165, 34 L. ed. 762 (construing Utah statute); People v. Mullings, 83 Cal. 138, 17 [357] Am. St. 223, 23 Pac. 229; Falk v. Wittram, 120 Cal. 479, 65 Am. St. 184, 52 Pac. 707; Humphrey v. Pope, 1 Cal. App. 374, 82 Pac. 223. The numerous decisions cited by appellant in support of his position are under statutes essentially different from our own and have no application to the point here involved. The statutes of New York, Iowa and Wisconsin, although similar in some respects to sec. 5958, supra, contain an express provision permitting the husband or wife to testify against the other in a civil action of this nature. Many of the errors assigned attack from various angles the sufficiency of the evidence to support the verdict, and it is also urged that the verdict is excessive. There is no merit in either of these contentions. The assignments predicating error upon the giving of certain instructions and the refusal to give certain others requested by appellant are equally without merit. The gist or gravamen of the charge laid in the complaint is not the alienation of the wife’s affections, but the criminal conversation, the alienation of the wife’s affection being incidental and material only in so far as it affects the quantum of damages. We have carefully examined the entire record and are satisfied that no prejudicial error is disclosed therein. The judgment is affirmed. Costs are awarded to respondent. Morgan and Bice, JJ., concur.