Garrat ex rel. Tybout v. Garrat

Shippen, C. J. and Smith, J. who sat on the trial, referred the decision of the motion to the other justices. And Yéates, J. pronounced the opinion of the court, to the following effect. I perfectly concur in opinion, with the judges who tried the issues in this libel, that it would be highly dangerous to the citizens in general, if they were compelled to answer to criminal charges, without being informed of the specific offences, against which they were called upon to defend themselves. Common sense is in unison with the constitution, when it declares, “ that in all criminal prosecutions, the accused hath a “ right to be heard by himself and his counsel, and to demand “the nature and cause of the accusation against him.” Declaration of Rights, § 9. At the same time, I fully concur in the sentiment expressed by my brother Smith, on the trial, that it is not indispensably necessary, to name the particeps crintinis in the libel for divorce, founded on a supposed adultery. But if it. be stated to have been committed with E. P. and other lewd persons, to the libellant unknown, if their names are afterwards known, written notice of them and of times and places should be given to the respondent, a reasonable time before the trial, without requisition. If their names are really unknown, the times, places and attendant circumstances should be contained in the specification, so as to give the party charged a fair opportunity of defence against the accusation. Failing therein, I think the complainant should be precluded from giving particular instances in evidence on the trial, on a general charge. Thus the essentials of justice would be preserved, and the party being forewarned of the specific offence, would have a full opportunity of showing his innocence ; and the feelings of individuals, whose names might be inserted on the record on the slightest grounds, and who have no opportunity of defending themselves, would remain unwounded. The practice of this court has not conformed to what I have already mentioned to be my ideas on the subject. In some libels, a general charge has been made, and the evidence has gone into particulars. The court have therefore adopted it in those instances, as legal proof under the act. In some cases, the names of the paramours may be wholly unknown, although the proof of # 1 *the crime against the party charged may be of the most -* I cogent and unequivocal nature. We may fairly suppose, that the objection to the evidence of [251] fered to the court on the trial, was a surprise on the libellant’s counsel. I should strongly be inclined to adhere to the strict rule of evidence in future. But viewing the present libel under all its circumstances, and the practice which had before obtained, I am of opinion that the nonsuit should be set aside. It is admitted that a new libel may be filed, to bring the present matter before a jury. This would produce delay, and increased expence ; and I think it better for the parties, that the nonsuit be set aside, and the evidence be fully heard in this action on a complete and detailed specification. Cited in 30 Pa. 420 in support of the proposition that a libel for divorce must set forth “particularly and specially ” the causes of complaint; it is not sufficient under the act of May 8, 1854, to allege, in general terms, that the marriage -was procured by fraud, force, and false representations. Cited for a similar purpose in 64 Pa. 473. Cited on the question of notice in 65 Pa. 37. Cited in 62 Pa. 462 ; 2 Phila. 361. Brackenridge, J. concurred. Nonsuit set aside. In December term 1805, thé libellant withdrew her second libel for adultery, and the respondent also withdrew his answer thereto, and confessed the fact of wilful and malicious desertion and absence, without a reasonable cause, for the term of four years ; whereupon the parties were divorced, on motion.