Foulks v. Archer

Elmer, J. The only error relied upon in this case was, that the court, upon the trial, refused, to overrule, as incompetent, the following question asked of Foulks, the defendant, while under cross-examination, viz., “ Did you have any sexual intercourse or connection with Beulah (the plaintiff’s wife), between the time she came to your house to live and the time she was married?” It appears by the bill of exceptions [59] that the witness was told he could do as he chose about answering the question, and he said, I shan’t answer that question. The action was in case for criminal connection with Archer’s wife, and the adulterous acts were laid with a continuando. It was urged in objection to this question, that it was not competent to inquire whether there had been a criminal connection before the marriage took place, or at any time outside of the time laid in the declaration. Whether this can be done by the plaintiff as a distinct ground or in aggravation of the damages, it is not necessary to determine. State v. Bates, 10 Conn. R. 372 ; Gardner v. Madeira, 2 Yeates 466 ; 14 Pickering 518; 2 Greenl. Ev., § 41, 42. The question was asked in this case by way of cross-examination, where a great latitude of examination is sometimes permitted in the sound discretion of the court, and is often essential to the discovery of the truth, even in the case of apparently disinterested witnesses, and much more so now when the party is allowed to testify for himself. In the case of Gardner v. Madeira, the court held that although such evidence was inadmissible in the first instance; after laying a reasonable ground to infer an improper connection between the parties within the limited period, the court will be more liberal afterwards in receiving other evidence of indecent conduct at different times, tending to show the criminal views and acts of the parties. The proof of adultery need not be direct and positive. In every case almost, the fact is inferred from circumstances which lead to it by fair inference as a necessary conclusion. 2 Greenl. Ev., § 40. Such circumstances had been proved in this case; it being testified that the parties had been seen together during the times stated in the declaration, in such a position on a bed as led naturally to the supposition that they were guilty of adultery. The defendant himself set up that the wife had had a child before her marriage. He admitted that she had lived in his family several years, and that his intimacy with her continued after she left him and [60] after marriage. He paid the expenses of her lying-in, and took the child to bring up as his own. He denied the truth of the statements made by the witnesses as to the particular circumstances of their being together on the bed, and in answer to the question whether he had had adulterous intercourse with her after her marriage, he answered, unequivocally, no. Under these circumstances I think the question objected to was a fair question to enable the jury to judge of his credibility — to show whether the previous bad character attributed to the wife was such as ought to mitigate the damages and to characterize such acts of the parties, after the marriage, as may have been proved to the satisfaction of the jury. The relations, whether of friendship, blood, confidence, gratitude, hospitality, or the like, which subsisted between the parties, and the circumstances attending the intercourse at the time the adultery was alleged to have taken place, were proper subjects of inquiry in reference to the damages, and were more or less involved in the defendant’s answer to the question put to him. 2 Greenl. Ev., § 55; Van Eps v. Van Eps, 6 Barb. 320. In my opinion there was no error in the ruling of the court, and the judgment must therefore be affirmed. Brown, J., concurred.