Brooks v. Brooks

14 N.E. 777, 145 Mass. 574, 1888 Mass. LEXIS 365

• Court: Massachusetts Supreme Judicial Court
• Decided: January 6, 1888
• Status: Published

Opinion

Holmes, J.

It is settled that evidence of indecent familiarities with the person with whom adultery is charged, and even of sexual intercourse with him, at other times after marriage, is admissible to explain the character of ambiguous conduct relied on as evidence of the act of adultery in issue. Thayer v. Thayer, 101 Mass. 111. Commonwealth v. Nichols, 114 Mass. 285. Commonwealth v. Merriam, 14 Pick. 518. There can be no doubt that evidence of sexual intercourse on the morning of the marriage, and of acts of familiarity shortly before, tends in like manner to explain doubtful conduct shortly after it. The objections based on the general rules of evidence are answered by Thayer v. Thayer. It is said that marriage operates as an oblivion of all that is passed. But there is no reason for making of this rule a veil of fiction which prevents the facts from throwing their natural light on subsequent events. See Weatherley v. Weatherley, 1 Spinks 193, 196; Van Epps v. Van Epps, 6 Barb. 320. Exceptions overruled.