Toole v. Toole

Avery, J. (after stating the facts): On the trial of actions for divorce a vinculo matrimonii the adultery alleged cannot be shown either by the direct testimony of the parties or confession of husband or wife made to each other or admissions in the pleadings. The Code, §1288 ; Steel v. Steel, 104 N. C., 631. But the declarations of an alleged paramour, made to or in the presence of the feme defendant, indicating that improper familiarities had been or were about to be indulged in between them, and her reply to such declarations, fall neither within the prohibition of the statute nor the reason of the rule and are therefore clearly competent. Hansley v. Hansley, 10 Ired., 506; Brown on Divorce, 59; Pond v. Pond, 132 Mass., 219; 2 Bishop Mar. & Div., 1417. The conversation between Palmer and tlie defendant from its very nature precluded the possibility that it was conceived in any collusive arrangement between the parties, and “ the policy of the law, as affirmed in the express provision of the statute, is to exclude confidential communications between husband and wife, as privileged, and any declaration by either that apparently may have originated in a conspiracy between them to manufacture or furnish evidence sufficient to warrant a decree of divorce.” Perkins v. Perkins, 88 N. C., 41. But where there is no danger of opening the dooi for collusive testimony, such suspicious conversations with an alleged paramour are clearly competent, especially in corroboration of other circumstantial [156] testimony, or in connection with other direct evidence tending to prove adulterous intercourse with the paramour. The unwarranted familiarity between the defendant and Palmer which is shown by the conversation tends to prove that improper relations had existed between them, and to corroborate other testimony as to criminal intercourse. 2 Bishop Mar. & Div., sec. 1374. Confidential communications between husband and wife are privileged and neither is compelled to divulge them upon the witness stand; but the testimony of Lillie Graham that she saw Palmer in the bed-room of the defendant, and at the trestle in company with her, 'was competent in itself, and when considered in connection with the previous declaration of the plaintiff made to defendant in presence of the witness, her disregard of his express washes becomes material because it makes her conduct appear much more suspicious. The language used by the husband about a week before, viz., “Laura, I have told you before, and tell you again, I don’t want to catch Palmer at my house any more,” wras not a confidential communication between husband and wife, but a command uttered in the presence of another, the disregard of which tended to prove her infatuation for Palmer. If, then, we should concede that confidential- communications between husband and wife are not simply privileged as to them, but cannot be proven even by a third person, and though neither husband nor wife is competent or compellable to testify directly as to the adulterous acts charged, according to a proper interpretation of the statute (The Code, §588) this was not such a communication, and being offered in connection with her conduct and proven by a third person was competent. But similar testimony was- declared, when this' case was heard on the former appeal, 109 N. C., 615, to be competent as tending to show adulterous intercourse as well as for - the [157] purpose of contradicting the witness, who testified that plaintiff had employed Palmer to stay with his family. It is therefore needless to discuss this point at greater length. If the testimony of Webb was incompetent the error in admitting it was cured by withdrawing it from the jury and giving them the proper caution not to be influenced by it in making up their verdict. Gilbert v. James, 86 N. C., 244; McAllister v. McAllister, 12 Ired., 184; Osborne v. Wilkes, 108 N. C., 651. Prom the statement of the case on appeal it appears that the objection to the testimony of Morris was vfithdrawn, though the exception to its admission seems to have been assigned and to be now insisted on as error. It is not material, however, whether it can be insisted on or not. The request of the defendant to be allowed to pay the costs of a prosecution against Palmer was in no sense a confession of her guilt. It was but a circumstance tending to show interest in him and associa-, tion with him and to corroborate other testimony as to adulterous intercourse between the parties. Hansley v. Hansley, supra. The statute protects the sanctity of the relation by preventing the disclosure of confidential communications between husband and wife, and all confessions of guilt by the parties are looked upon with suspicion, because of the temptation to resort to collusion, when, as is frequently the case, both parties desire to be released from the contract. But a different question is presented when the declaration of a particeps criminis to the accused party and the conversation growing out of it, though amounting to an admission of criminality, is offered, or when a command of a husband to a wife is proved by a third party in connection with evidence of her disregard of such command at the instance of an alleged paramour. Whether under our statutes now in force admissions of guilt by either husband [158] or wife made to a third person, and under such circumstances as to preclude the suspicion of collusion, would in any case be competent, when disconnected with other evidence of familiarity or improper association, it is not necessary to determine. For the reasons given we think that there was No Error.