Nelson v. Sandel

Brooke, J. (after stating the facts). In this court plaintiff reviews the case under some 57 assignments of error which we find it unnecessary to consider at large for the reason that after a careful reading of all the testimony introduced we are of opinion that [78] the learned circuit judge who tried the case was in error in failing to grant the first request to charge preferred by defendant’s counsel and direct a verdict in' his favor upon the grounds stated. Error is assigned upon the admission and exclusion of testimony. A careful scrutiny of such assignments makes it clear that no evidence offered on behalf of the plaintiff was excluded which had the remotest tendency to establish defendant’s guilt. We, therefore, reach for consideration the sole question whether, given its highest probative value, the evidence introduced on plaintiff’s part was such as to legally warrant the jury in drawing an inference that defendant on the 8th day of July, 1916, in the twenty or thirty minutes during which he and plaintiff’s wife were absent from the public sittingf-room in the Hotel Leisher, committed the act of criminal conversation of which complaint is made in the declaration. Under all the authorities in a casé of this kind it is necessary, for the plaintiff to prove by a preponderance of the evidence an adulterous disposition on the part of the parties. It is further necessary to prove in the same manner that the parties had an opportunity to commit the crime. Knickerbocker v. Worthing, 138 Mich. 224. In Brown v. Evans, 149 Mich. 429, this court specifically approved of the following instruction: _ “Mere opportunity to commit adultery is not sufficient to establish this offense; there must be evidence of such facts and circumstances, times and places, and association .together as would naturally lead a man of ordinary care and prudence to the conclusion that such parties were having illicit sexual intercourse.” Applying these.rules to the facts in the case at bar we find that prior to the day in question the defendant' had been in the society of. plaintiff’s wife but twice, upon each of which occasions plaintiff himself [79] was present. There is absolutely no evidence of any undue intimacy between defendant and plaintiff’s wife upon either of the occasions in question, nor, assuming that every word testified to by Mrs. Madden is true, is there anything in her evidence contained tending to show that the defendant was actuated by an adulterous disposition. The circumstances surrounding the parties in the Hotel Leisher at Saginaw are not only consistent with defendant’s innocence, but they are insufficient, in our opinion, to support an inference of his guilt. The mere fact that a man and woman in broad daylight leave the public sitting-room of a hotel in company with each other and return together after an absence of from twenty to thirty minutes is not sufficient to warrant the jury in drawing an inference that an opportunity was afforded for the commission of the crime charged. The case under its facts is much weaker than Brunelle v. Ruell, 140 Mich. 256, cited and relied' upon by plaintiff. The jury by its verdict upon its own volition reached the result which it should have reached under the direction of the court. The judgment is affirmed. Ostrander, Moore, Steere, Stone, and Kuhn, JJ., concurred with Brooke, J. Bird, C. J.,. and Fellows, J., concurred in the result. .