« 이전계속 »
from thence bitherto wholly lost and was make proof for herself by offering her own deprived of the comfort, fellowship, society, petition as evidence in her favor, and thus and assistance of the said Edwin H. Wal asperse the character of the defendant. The dron, her said husband, in her domestic af court admitted the record to prove the fact fairs, which the said plaintiff during all that of the divorce alone, and, while thus admittime ought to have had, and otherwise ting it, repeatedly declared that it could onmight and would have had,” etc., "afore ly be used for that one purpose, and that said."
the averments in the petition and other mat(2) "Whereas, the said defendant, contriv ters reflecting on the defendant were not ing, and wrongfully, wickedly, and unjustly to be disclosed or read to the jury. The de intending, to injure the said plaintiff, and to fendant excepted to the admission of the deprive her of the comfort, fellowship, 80 record for any purpose whatever. ciety, aid, and assistance of Edwin H. Wal The plaintiff then offered the statute of Indron, the then husband of the said plaintiff, diana relative to divorce, and this was also and to alienate and destroy his affection for admitted, in spite of objection, as evidence the said plaintiff, on, to wit, the 6th day of of the Indiana law on that subject. The tesJune, A. D. 1886, and on divers other days timony of the judge before whom the di. and times between said 6th day of June, A. vorce proceeding was had was then admitted. D. 1886, and the 21st day of June, A. D. Wilson, who appeared as attorney for Wal1887, at," etc., "wrongfully and unjustly dron in the divorce proceeding, was also alsought and made the acquaintance of Edwin lowed, over objection, to testify as to his conH. Waldron, the husband of the said plain- nection therewith. Davie, the-witness on the tilf, and then and there, well knowing that strength of whose testimony tbe decree of said Edwin H. Waldron was the husband divorce had been mainly based, was also al. of said plaintiff, wrongfully, wickedly, and lowed to testify. In the closing argument to unjustly besought, persuaded, and allured the jury, Mr. Aldrich, of counsel for the plainthe said Edwin H. Waldron to desert and tiff, used the following language: abandon the said plaintiff; and thereby the “ "The divorce law of Indiana provides that affection of said Edward H. Waldron for
a divorce may be decreed the plaintiff was alienated and destroyed, for the following causes, and no other: Aduland also, by reason of the premises, the tery, except as hereinafter provided; impo plaintif has from thence hitherto been tency existing at the time of the marriage; wholy deprived of the affection, society, abandonment for two years; cruel and inaid, and assistance of her said husband in human treatment of either party by the other; her domestic affairs, which the plaintiff dur habitual drunkenness of either party; the ing all that time ought to have had, and failure of the husband to make reasonable otherwise might and would bave had, and provision for his family for a period of two also, by reason of the premises, the said years; the conviction subsequent to the marplaintiff, during all said time from thence riage, in any country, of either party, of an hitherto, suffered great mental anguish and infamous crime. loss of social reputation at," etc., “aforesaid, " "The only two that are referred to in this to the damages of said plaintiff of one hun. bill for divorce—the record is not here. I dred thousand dollars, and therefore she shall state it, and if it is challenged I shall brings her suit,” etc.
read it when it comes-are these: That he The defendant pleaded that inasmuch as the had abandoned her. Is there any conflict in relation of husband and wife, which former the evidence in this case that that abandonly existed between the plaintiff and defend ment only extended from the 6th day of June ant's present husband, had been terminated up until the time this decree was entered, by a decree of divorce, granted at plaintiff's the 21st day of June, 1887,-a year. Is that own demand, the action was not maintain a compliance with the statute calling for able. She further pleaded the general is. abandonment for two years? Nothing of the
kind. Cruel and inhuman treatment? Hasn't The case came to trial in January, 1890. Edward H. Waldron testified upon the stand In the opening statement, foreshadowing the in this case, and is there any dispute upon case which it was proposed to prove, one of this subject, that there was no cruel and inthe counsel for plaintiff read to the jury human treatment upon his part in this case; extracts from the divorce proceedings, and that he had never been guilty of cruel and commented thereon in manner which inhuman treatment? And has the statement clearly indicated that they were links in a been challenged that cruel and inhuman chain of evidence which plaintiff proposed treatment, under the laws of the state of Into offer in order to establish the adultery diana, only means acts of cruelty coupled with of the defendant. Thereafter, during the personal violence? progress of the trial, the record of the di " "There has been no cruelty, or anything vorce suit was offered in evidence by the of the kind. They say there is no charge of plaintiff. for the general purposes of the adultery in this case. The record says that case; and its admission was objected to by there was no cruel and inbuman treatment, the defense on the ground that it was res and that he was enamored of Josephine P. inter alios, and that the plaintiff could not Alexander, in this case.
was the only witness upon this subject, and he has said *
that he . did not know Edward H. Waldron until be came to Chicago, and Edward H. Waldron has testified
that up to the time he came to Chicago he had no acquaintance with Robert Davie. *
He was the agent-the paid agent-of Edward H. Waldron. Edward H. Waldron is too able a man, he has too much brains, he is too cute, he is too slick, gentlemen of the jury, not to apply any other terms but those that are fitting to him, to suppose that a decree could be obtained in Indiana for abandonment or for cruelty or for inhuman treatment. Ed. ward H. Waldron knew as well as you know that he could only get a divorce, and it could only be procured on the ground of his adultery with somebody. * Robert Davie knew it. By reason of this nonacquaintance at that time, Robert Davie could not have testitied to any of the acts of cruelty. How und Robert Davie acquire his information? By these innumerable visits to Chicago. In view of the testimony in this case, in view of the relations of the parties, in view of the fact that Edward H. Waldron has tes. tified that he had talked with the defendant on two occasions about these divorce matters, and the fact that he was living at this house at that time, with that fact before you, you cannot believe, that it was unpremeditated, that it was unknown, or anything of that kind.'
"Mr. McCoy, for the defendant, excepted to the statement of counsel that Robert Davie had obtained the information to which he testitied in the divorce proceeding in Chicago, or from Edward H. Waldron, on the ground that the court had excluded the evidence of Robert Davie on that subject.
"Ur. McCoy: 'I read a question here as to whether or not, Mr. Davie obtained his inforination in Chicago, and be replied that he did not, and that extra question and answer was stricken out as being within the character of the evidence excluded by the court. Therefore, I do not think it is proper to comment upon to the jury.'
"Mr. Aldrich further stated to the jurv: 'I submit to you, gentleinen, that any information upon that subject-whether it was cruelty, or whether it was cruel and inhuman treatment, or whether it was abandonment-must have been acquired by Mr. Davie while he was in Chicago.'
*To which statement of counsel for the plaintiff. Mr. McCoy, counsel for the defendant, objected, and then and there duly excepted, for the reasons above stated.
*Jr. McCoy further objected to the statements of the counsel for the plaintiff to we jury as to the laws of Indiana on the subject of divorce, and the argument that it must have been granted on the grounds alleged in the complaint in the divorce proceeding reflecting upon the character of the defend
ant, Josephine P. Alexander, and then and there duly excepted to such statements.
“And thereupon, after further arguments to the jury,
Mr. Dexter addressed the jury in a closing argument on behalf of the plaintiff, in the course of which he spoke as follows:
“Mr. Dexter's Closing Argument “ 'Now, what was that divorce? Gentlemen, this subject of divorce was spoken of, you recollect, between Waldron and the defendant. It is was a matter of conversation, he says, on one or two occasions, and you have heard read his language on that subject. Now, I assert that here was a wicked scheme against the established order of society and the rights of this woman, and that the defendant shall not escape here by throwing up false issues. Are there any grounds of divorce here, except those which sustain this action?
"Mr. Walker, for defendant: 'I enter ay objection to the statement of counsel.'
"The Court: ‘All that was in the declaration the court excluded.'
"Mr. Dexter: " . The conclusion that it (the evidence) leads to, counsel shrinks from; it hurts him. The jury cannot be fogged about it. There is something underneath here that is reached for, and you will lay hold of it, and you will not be deceived about it There will he no effectual effort to keep your minds from coming to the conclusion that it ought to reach. I shall confine myself to the statements admitted by the court and read to the jury.
" "The plaintiff prays for decree of divorce for misconduct of the defendant on account of his cruel and inhuman treatment of tois plaintiff-neither cruel nor inhuman treatment proven save in the language of the bill —“in this, that he has become enamored of one Josephine P. Alexander, a married woman.
In its final charge to the jury, the court, among other things, said:
“The court has already adjudged that the decree of divorce obtained by the plaintiff from Mr. Waldron, June 21, 1887, is evidence conclusive in this case that the marriage relations between the plaintiff and Mr. Waldron were dissolved from the date of that decree. The decree of divorce acted on the status of the parties, and dissolved the marriage relation theretofore existing between them, and left each free to remarry; but the allegations contained in the bill of complaint in that case against Mrs. E. S. Alexander, the present defendant, are not evi. dence in this case, and were excluded by the court.
“The evidence also taken on the trial of that case is not competent evidence against the defendant in this case, and was also excluded. She, not being a party thereto, is not permitted to appear and cross-examine the witnesses. Nor should the jury assume
or infer from anything in evidence in this sented to the judge who conducted the trial case that the judgment of divorce was grant of said cause, for his approval, after the seted upon the ground of adultery, as that is tlement by him of any parts of said bill of not one of the grounds alleged in the bill of exceptions as to which counsel may have complaint, nor upon any ground or for any been unable to agree. of the causes having reference to the conduct “Fifth. That said bill of exceptions shall of the defendant in this case. Such an in be approved by said judge, and be by him ference has been sought to be drawn by sent to the clerk of said circuit-court, with counsel from the proceedings in that case, directions that it be filed as of the date of but it is an inference not warranted by the the entry of said judgment. record in evidence, and unfair towards the "Sixth. That within thirty days after said defendant. The jury will try this case upon bill of exceptions shall have been so filed the evidence produced on this trial, and not the transcript of said record shall be comassume or infer that other evidence might | pleted, and filed in the supreme court of the have been produced here, or was produced United States, in said cause, as theretofore In some other case, to which the defendant docketed. was not a party.”
"That in the meantime, so long as counsel In February there was a verdict in favor for said above-named defendant make no de. of the plaintiff for $17,500 (45 Fed. 315). In fault in the performance of the conditions March an application for a new trial was of this stipulation, counsel for the aboveheard, and taken under advisement. ID named plaintiff (defendant in error) will June, the motion for a new trial baving been make no motion to dismiss said writ of error overruled, the defendant moved in arrest. for failure to file said transcript of the record This motion was also overruled, and on the within the time regularly prescribed by the same day judgment was rendered on the rules of said supreme court, and the said verdict. The record states that, on motion transcript, when so filed, shall be taken and for defendant, the time to file a bill of excep considered as having been filed in apt time. tions was extended to the 1st day of Novem "This stipulation is executed in triplicate, ber next. Thereafter, a writ of error was one to be filed in the supreme court of the sued out, and a supersedeas bond fixed at United States, and one to be retained by $25,000. On October 6, 1890, a written stipu counsel for each of said parties. lation was entered into between counsel, "Dated at Chicago, Illinois, October 6, A. which, after mentioning the suing out of the D. 1890." writ of error, the giving of the supersedeas Application was made here, in due season, bond, and the issuance of citation returnable to docket this agreement and writ of error here in October, 1890, expressed the desire in lieu of the record, and was refused. The of the plaintiff in error to obtain an exten settlement of the bill of exceptions by the sion of time to prepare the bill of exceptions court is thus stated in the record: and file the record here, and set out that this "The clerk of said court will file this bill extension was agreed to by the defendant in of exceptions as of the date of July 10th, A. error, provided:
R. Bunn, Judge. "First. That the above-named defendant, "To William H. Bradley, Esq., Clerk. as plaintiff in error, shall file in the office of "Upon the presentation of the bill of ex. the clerk of the supreme court of the United ceptions to the judge for settlement, on FebStates the said writ of error, the said cita ruary 21, 1891, counsel for plaintiff (defend. tion, and this stipulation, and shall have the ant in error) moved that the judge do not said cause docketed in said supreme court, sign the same, because the defendant (plainin its regular order, within the time regu tiff in error) has waived her right thereto, larly required by the rules of said court for since said defendant has not filed this bill the filing of the transcript of the record in of exceptions within the time prescribed by said cause in said supreme court, as if this the judge at the time the appeal was prayed, stipulation had not been made.
and has failed to have said case docketed in "Second. That counsel for the above-nam the supreme court, as in and by a stipulaed defendant shall have until November 15, tion entered into on October 8, 1890, between A. D. 1890, to prepare the bill of exceptions the attorneys of the respective parties prein said cause, and deliver it to counsel for scribed. the above-named plaintiff, for examination "Which motion was denied by the judge. and such correction as he may deem proper. "To which ruling counsel for plaintiff then
“Third. That counsel for the above-named and there duly excepted. plaintiff shall examine said bill of excep * “Date, Madison, Feb'y 21, 1891." tions, and return it to counsel for the above The bill of exceptions in its caption recites: named defendant within thirty days after it “Be it remembered that on the trial of the shall have been delivered to him, with any above-entitled cause on the 21st, 220, 23a, proposed corrections or alterations which he 24th, 27th, 28th, 29th, 30th, and 31st days may deem proper.
of January, and the 1st, 3d, and 4th days "Fourth. Thereafter, as soon as practica of February, A. D. 1890, in the December ble, but within thirty days, upon reasonable term of said court, A. D. 1889, the said cause octice, said bill of exceptions shall be pre- | having been reached and come on for trial
in its regular order on the trial calendar of reserved in this connection is accordingly, said court, the following proceedings were also, without merit. As to the contention bad, viz.”
that the appeal was docketed too late, the When it reaches the point where the evi defendant in error is precluded from relying dence for plaintiff is recited, there appears thereon by reason of his motion here for a the heading, “Plaintiff's Evidence.” At the new bond, long after the entry of the case point where the opening evidence for the on the docket of this court, which was made plaintiff ends, is the following entry: "Which at the return term. was all the evidence here offered on the part Whether the concluding words in the bill of the plaintiff on the trial of the cause." of exceptions, “which was all the testimony This is immediately followed by the words, offered on the trial of the cause," would be “Defendant's Evidence. Thereupon, the de treated as meaning all the evidence, if unfendant, to maintain the issues on his part explained by the context of the bill, need not in said cause, introduced the following evi be considered, as all the recitals in the bill, dence." At the close of the evidence which from the caption to the end thereof, taken to a follows the foregoing is the entry, "Here gether, we think, conclusively show that the counsel for defendant rested their case"; /*words, "all the testimony," were used as syn. and following this: "Rebuttal. And there onymous with "all the evidence." This conupon the plaintiff, further to maintain the clusion is strengthened by the fact that the issues on her part, introduced the following bill was settled contradictorily, and no reserevidence in rebuttal.” At the conclusion of vation as to its incompleteness was made. this evidence is the statement, "Which was Coming, then, to consider the record, we all the testimony offered on the trial of said find that the assignments of error here are of cause." The record was filed and docketed a threefold nature: (a) Those which relate bere February 28, 1891. In December, 1892, to the conclusions of law reached by the defendant in error moved to vacate the su court upon the merits of the controversy; persedeas because the surety on the bond (b) those which complain of perversion and had become insolvent. On December 12th misuse by counsel of evidence admitted, it was ordered that a new bond be given which it is alleged were so serious that they within 30 days, and on the same day the must have affected the minds of the jury to new bond was filed.
such an extent as to render the verdict and
judgment necessarily reversible; and (c) those Wm. H. Barnum, for plaintiff in error.
which rest upon the alleged rejection of legal Chas. H. Aldrich, for defendant in error.
and admission of illegal evidence.
We will first approach the investigation of *Mr. Justice WHITE, after stating the case, the matters mentioned under the second delivered the opinion of the court.
heading, since, if the complaint of perversion The motion to dismiss or affirm is without and misuse of evidence is justified, it is not merit. The signing of the bill of exceptions necessary to consider whether the rulings on after the expiration of the term at which the the admissibility of testimony, or the final judgment was rendered was lawful, if done conclusions of law, upon the merits, were by consent of parties given during that term. correct. Hunnicutt v. Peyton, 102 U. S. 333; Davis The complaint of the conduct of counsel in v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102; argument is substantially predicated upon Bank v. Eldred, 143 U. S. 293, 12 Sup. Ct. 450. the following analysis of the facts, which we
The fact that the bill of exceptions was not find borne out by the record. In the opening handed to counsel for defendant on or before statement of counsel for plaintiff, portions of November 15, 1890, does not appear of rec the divorce proceedings were read to the ord; and, if it did, it would be rendered im- jury; counsel saying, among other things: material by the action of the judge below in "Here was an allegation that she has enticed settling the bill.
him from his home, and the divorce was If the bill was not delivered to counsel granted upon that ground, among others; within the time fixed by the agreement, ob that is, the decree finds that the facts in the jection to the failure so to deliver it should complaint were proved, and that the divorce have been urged when the bill was settled. was granted upon that ground.” When the And, if an objection then taken was over record of the divorce proceedings was offered ruled, the question of the correctness of such by the plaintiff, objection was made thereto; action should have been then reserved. The and thereupon the court admitted it to prove fact is that the only reservation made in the the fact of the divorce alone, expressly limitsettlement of the bill is thus stated in the ing it to such purpose, and forbidding the record: “Counsel for plaintiff move that the reading or stating to the jury any of the judge do not sign the same, because the de averments found in the petition which in any fendant has not filed this bill of exceptions way reflected upon the defendant. Whep within the time prescribed * at the the statute of Indiana was admitted, over time the appeal was prayed." This, of objection, its introduction was allowed solely course, was not sound, in view of the agree for the purpose of showing the law under ment whereby the time which had been at which the divorce was granted. *Having* first fixed was extended. The only question | thus obtained the admission of the record
and the statute for qualified and restricted ency of these various contentions, we pass purposes, plaintiff's counsel, in their closing to the consideration of their correctness. argument to the jury, used these instruments The claim that no exception was reserved of evidence for the general purposes of their to the misuse of testimony is founded on case, repeated to the jury some of the aver the proposition that as the objection made ments in the petition which assailed the by defendant to the record and statute was defendant's character, and put those allega to their admissibility in any form, or for any tions in juxta position with the statute of purpose, and as they were admissible to Indiana on the subject of divorce, and the tes show the fact of divorce, the objection, betimony of certain witnesses, in order to pro- | ing general, was not well taken. To state duce the impression upon the minds of the this argument is to answer it. It is clear jury that the decree of divorce had been that where evidence is admitted for one cergranted on the ground of adultery between tain purpose, and that only, the mere fact the defendant and Waldron. Indeed, the fact that its admission was not objected to at is that the counsel, after referring the jury the time does not authorize the use of it for to the evidence which was not in the record, other purposes for which it was and could stated to them, in effect, that it established not have been legally introduced. The right the fact, or authorized the fair inference, of the defendant below to object to the perthat the decree of divorce bad been rendered version and misuse of the evidence depends on the ground of adultery with Mrs. Alexan- | upon whether objection was duly reserved der, and therefore conclusively established thereto, and not upon whether exception was the right of the plaintiff to recover in the taken to the admissibility of the evidence present case. It is unnecessary to say that which, it is asserted, was misused. That all this is ground for reversal, unless its legal exception was here taken to the misuse of effect be in some way overcome.
It is ele the evidence is plain. At the close of the mentary that the admission of illegal evi- case, when reference was made by one of dence, over objection, necessitates reversal; the counsel for the plaintiff to the record and it is equally well established that the and to the Indiana statute, and the other assertion by counsel, in argument, of facts, matters connected therewith, the following no evidence whereof is properly before the exception was reserved: jury, in such a way as to seriously prejudice "Mr. McCoy, counsel for defendantfurthe opposing party, is, when duly excepted ther objected to the statements of counsel to, also ground therefor. Farman V. Lau. for the plaintiff to the jury as to the laws man, 73 Ind. 568; Brow V. State, 103 Ind. of Indiana and the suit for divorce, and the 133, 2 N. E. 296; Bulloch v. Smith, 15 Ga. argument that it must have been granted 395; Dickerson v. Burke, 23 Ga. 225; Loyd upon the grounds alleged in the complaint v. Railroad Co., 53 Mo. 514; Wightman v. in the divorce proceedings, which reflected Providence, 1 Cliff. 524, Fed. Cas. No. 17,630; upon the character of the defendant, Jose Martin v. Orndorff, 22 Iowa, 505; Tucker v. phine P. Alexander, and then and there duly Henniker, 41 N. H. 317; Jenkins v. Ore-Dress excepted to such statements." ing Co., 65 N. C. 503; State v. Williams, Id. It is true that when, in the closing argu505; Hoff v. Crafton, 79 N. C. 592; Yoe v. ment for the plaintiff, made by other counPeople, 49 Ill. 412; Saunders v. Baxter, 6 sel, similar language was used and objected Heisk. 377.
to, no exception was reserved. This, how. The foregoing conclusions are not disputed ever, is immaterial, as exception was reby the defendant here, but she seeks to avoid served to the language first used, and this their application as follows: First, by deny. one exception, if well taken, must lead to re ing the right of the plaintiff in error to raise versal. the question, upon the ground that no excep The contention that the prejudicial avertion was reserved to the misuse by counsel ments in the petition for divorce were not of the evidence which is complained of ;* sec conveyed to the jury is thus argued: True, ondly, by asserting that the misuse did not the bill of exceptions shows that they were take place, and that the assertion thereof in so conveyed, but, because this statement is the bill of exceptions is erroneous and "inad- in direct conflict with the rulings of the vertent"; thirdly, by admitting that use was court, therefore the statement in the bill made of the various items of evidence men of exceptions would seem to be an inadtioned in argument, and contending that this vertence. In other words, the argument is was not a misuse, because the evidence was that the bill of exceptions must be disre. legally admissible for all the purposes of the garded on the theory that, if the facts stated cause, and was therefore properly so used; in the bill be true, error results, and error is and, finally, by insisting that, even if use not to be presumed. was made of alleged facts, evidence whereof The remaining suggestions are quite as un. had been expressly excluded, and which were sound as the specious one we have just not, therefore, before the jury, the wrong considered. The divorce proceeding and thus committed by counsel was cured by the statute, it is asserted, were admissible for final charge of the court, and therefore does all purposes, because there was evidence not give rise to reversible error. Without tending to show that the divorce was inpausing to consider the palpable inconsists | spired by Waldron in connivance with the