Evans v. Evans

By the Court, Crockett, J.: This is an action by the wife for a divorce, on the ground of adultery, alleged to have been committed by the husband; and the judgment having been for the defendant, the plaintiff has appealed, assigning as error: First, the exclusion by the Court of certain declarations and admissions of the defendant, offered to be proved by the plaintiff on the trial; and second, that the judgment is not supported by the evidence.

The evidence which was excluded was of admissions of the defendant, that he had had adulterous intercourse with prostitutes. The eighth section of the Act of 1851, concerning [107]divorces, which provides that a divorce shall not be granted on the confession or admission of the defendant, was intended to prevent collusive divorces, and requires other proof of the facts alleged, but does not prohibit such admissions from being given in evidence in connection with other proofs. Standing alone, and unsupported by other evidence, they would not be sufficient to authorize the divorce. Nevertheless, they are competent evidence, and are to be weighed in connection with the other proofs. This was the construction given to the statute in Baker v. Baker, 13 Cal. 87, and is, doubtless, the correct one. The Court, therefore, erred in excluding the evidence.

On the proofs in this cause I am at a loss to comprehend on what theory the Court could have arrived at the conclusion that the charge of adultery was not proven. It was shown by the testimony of a witness, who was neither contradicted or impeached, that on-one occasion the defendant entered a house of prostitution in Marysville, and was seen to emerge from it on the following morning. No explanation whatever was given or attempted by the defendant of the purpose of his visit to this house; and, in the absence of all proof to the contrary, the natural and reasonable presumption is that he went there for the purpose indicated by the character of the house. If the object of his visit and his conduct whilst there were innocent, the onus probandi was on him to show it. The mere fact that a married man enters a house of prostitution in the evening, and remains all night, raises so strong a presumption of adulterous intercourse as to require the most satisfactory evidence to rebut it. The act of adultery, like any other fact, may be established by circumstantial proof; and it would shock the moral sense of the community to hold that such proof as this, if unexplained, would not raise a strong presumption' of adulterous intercourse. This was the view of Lord