Leary v. Leary

18 Ga. 696

• Court: Supreme Court of Georgia
• Decided: August 15, 1855
• Docket: No. 100
• Status: Published

Opinion

By the Court.

Starnes, J.

delivering the opinion.

[1.] The first objection is to the decision of the Court below in excluding the depositions of Mrs. Lawson.

This objection was put upon the ground that the testimony ■was irrelevant. And it has been argued that it was so, because the conversations between Mrs. Leary and Mr. Logan were not given by the witness; and that these are the best evidence of any solicitude which may have been manifested.

It is not denied, we believe, that such solicitude or tender •interest might be shown in such a case, without proof of any conversations whatever, as would serve to indicate more than a mere friendly or charitable purpose, in the ministrations of a married lady, at the sick bed of a gentleman not her husband. In our opinion, such suspicious solicitude might be evinced, either by what was said by the lady, or by her demeanor, or by both together. If it were, in the opinion of the witness, manifested, either in the first or the latter way, the conversations should bo given if possible. If the witness does not recollect the words used, ho may give the impression loft upon his mind, as to the substance and effect. The opinion formed by Mrs. Lawson, (the witness in this case,) we think, from what she says, rested both on the conversation and the conduct of Mrs. Leary. But she states that she does not recollect the conversation. She gives, therefore, only the .result which it and the anxious manner of Mrs. Leary produced upon her mind.

It is every day’s practice to receive testimony of emotions, as they are manifested by the behavior and bearing of parties. Fear, apprehension, surprise, anger, anxiety, content, ■satisfaction and dissatisfaction, are thus constantly proven. And the experience of all men sanctions the practice.

We do not wish to be understood as intimating that these •depositions really do show that a tender solicitude for Mr. Logan was manifested by Mrs. Leary. Her conduct, perhaps, may be explained by attributing her anxiety and attentions to her charity and hospitable kindness. But this is for the Jury to decide. And we only mean to say that we think these depositions should have been, for this purpose, submitted to them.

[2.] The point next made was, that the Court erred in holding that there was a leading question in a set of interrogatories addressed to Mrs. Marchman; and consequently, excluding them.

We have not examined this interrogatory very closely, but we incline to think that the question, as it comes to us in the record, is not leading. But this is immaterial, as the testimony was obtained by another set of interrogatories, was submitted to the Jury, and no harm was done by the rejection of the first set.

The Act of the last Legislature regulating the granting of new trials, does not affect this view of the subject. We have repeatedly decided that that Act applies only to cases where a motion for a new trial has been made in the Superior Court.

[3.] We think the Court ruled rightly in excluding the testimony of Ichabod II. Albertson.

The circumstances stated by him were in no wise connected with Mrs. Leary. They were res inter alios acta. And very curious things they were which were acted in the comedy to which ho testifies. The pen of the humorous dramatist might find some useful hints in his story, from which could be gathered abundant material for a comedy of the “ Jealous Husband,” in the retirement of the country.

Ey no rule of evidence can the letters spoken of by this witness, and exhibited in connection with his testimony, be connected wi th Mrs. Leary. It is impossible to say but that the amatory effusions of the duped Mr. Logan) (if it be not injustice to call things amatory which remind one so much of the ass’s efforts to imitate the lap-dog,) may have been provoked by the seducing epistles in which the husband was representing his own wife as being so sweet upon the dupe, and by the lock of hair which was a part of the contents of one of these letters. It is difficult to say how much these things may havedrawn forth from the amarous swain of his rude and salacious demonstrations. It will not do, therefore, to carry these last to the account of previous criminal relations between him and Mrs. Leary, and to infer from them the foregone conclusion which they are offered to demonstrate. Besides, testimony of this sort, obtained in this way by a husband, can never be regarded as competent evidence, even if it did authorize such a conclusion.

If the letters were not proper evidence; and what transpired on the night of the 8th of October, as detailed by Albertson was not evidence, the fact of the witness, Valentine, having met Logan about this time, returning from Houston, for similar reasons, is not proper evidence.

[4.] Por a similar reason, too, we think that the declarations which, it was said, were made by Logan, as to his having had criminal intercourse with Mrs. Leary, were not proper evidence. She was not present, did not hear them, and there is no evidence that they were ever brought to her knowledge. And, for anything that the record shows of her connection with these declarations, they may be base slanders.

It would be a most mischievous rule, indeed, which would admit such statements, unsupported by any recognition of their truth on the part of the person whom they accuse. It would be to place the reputation of every lady at the mercy of any foul-mouthed reprobate, who, casting upon her a lustful eye, might falsely seek to sully her reputation.

[5.] As to the statement of Stephen Brown, we are of opinion that it was not proper evidence, presented as this record shows it was. Yet, we think that it was competent for this witness to prove, if he could do so, by any circumstances within his knowledge, that the plaintiff in error did not' know anything of the report, as to a suspicious intimacy between Logan and his wife, until sometime after it had been put into circulation in the neighborhood; thus, to rebut any inference to his prejudice which might be denied from his apparent delay in discharging Logan.

[6.] We think the exception well taken as to the rejection of Thomas Judge’s testimony, to the effect that he had informed the plaintiff in error of this report, as to his wife’s intimacy with Logan. We are of opinion that this circumstance, taken in connection with the '■ discharge of Logan by him, and sending him from his house, might be looked to, perhaps, as evidence that he had acted promptly, in this behalf, and as a prudent husband should, under the circumstances, after he had received this information, and had not afforded encouragement to such criminal intercourse, if the Jury should find that it had existed.

[7.] Upon the subject of condonation, we think the Court erred in his instruction to the Jury, by summing up and referring to the facts relied upon by the defendant as showing such condonation, and altogether omitting any reference to-the circumstances wdiich had been relied on, as proving the-contrary. We have more than once disapproved of this mode of charging a Jury.

Let the judgment be reversed.