Johanson v. Johanson

ALLEN, P. J.

This is an appeal from a judgment upon a bill of exceptions to review errors of law in the exclusion of testimony.

The action was one for divorce upon the ground of adultery. The complaint averred that defendant, on the sixteenth day of December, 1907, in the city of Santa Barbara, at a house numbered 820 Anacapa street, committed adultery with a woman named Violet; that on January 15, 1908, at No. 822 Anacapa street, in said city, defendant committed adultery with some female whose name is unknown to plaintiff; that defendant has committed adultery at various other times with the said female named Violet, at said house No. 820

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Anacapa street, and with, other females in said house and elsewhere, the particular dates of said acts of adultery being unknown to plaintiff. The complaint was filed on the sixteenth day of January, 1908. The evidence offered in support of plaintiff’s complaint is entirely circumstantial, it being shown that on January 15, 1908, and at about 11 o’clock P. M., of such date, defendant in company with another man visited a brothel in the city of Santa Barbara; that at the time of such visit there was but one female inmate and the only conduct of defendant established in connection with the visit was that he was seen sitting in the reception room,, wherein the inmate was playing the piano and the male companion was dancing. Were it even to be assumed that from a visit to a place of this character adultery is to be inferred, nevertheless, the presumption attaching would only cast upon defendant the burden of explaining the object and purposes of his visit. This the defendant did to the entire satisfaction of the trial court, who found that no adultery was committed by defendant as charged in the complaint. The court finds, and there is ample evidence in its support, that defendant did not commit adultery with the woman named Violet at any time or place.

Upon the trial, a witness was called who admitted that she had been an inmate of the brothel during the month of March, 1908, and she was asked by counsel for appellant whether at night after 11 o’clock, on one or more occasions during the month of March, defendant visited that house. The court sustained an objection to this question and by reason of which error is claimed, and this upon the authority of