Opinion
08-07-1891
MCGRAIL v. MCGRAIL.
P. H. Gilhooly, for complainant. F. M. Voorhees, for defendant.
On bill, answer, cross-bill, and answer.
Action by Jane McGrail against Francis McGrail for support and maintenance. A cross-bill was filed by the husband, asking a divorce on the ground of her adultery. Decree for defendant.
P. H. Gilhooly, for complainant.
F. M. Voorhees, for defendant.
GREEN, V. C. This bill was filed by the wife against her husband under the twentieth section of the divorce act for support and maintenance, and an order for alimony pendente lite and counsel fee was made. The defendant, under an order, filed an answer to the bill, and with it a crossbill, charging his wife with adultery, committed with one Timothy Conlon at a designated house in Elizabeth, on the 15th of March, 1890. There was an answer by the wife, denying the adultery charged in the cross-bill, and an additional counsel fee was ordered to be paid by the husband to the wife's solicitor. Testimony was taken before a master and examiner, and the cause argued on the evidence so taken.
If the husband's case is established, there is of course no reason to examine the evidence to sustain that of the complainant. If the testimony given by the husband is to be believed, it is idle to question the guilt of the wife. She andthe person named, according to his statement, were discovered under circumstances that leave no reasonable doubt of the commission of the offense. The husband is a police officer of Elizabeth. He had some years previously separated himself from his wife, leaving her in the possession of a house which he owned, and the rent of which he has allowed her to collect and use. Her conduct while thus living in a state of separation was so far from exemplary that her husband's attention was called to it by the priest and friends, and the unfavorable rumors regarding it are in a measure shown not to have been unjust by the testimony of Mrs. Marie Conlon, who resided in the house with her. McGrail's attention being called to the conduct of his wife by the priest and by friends, he determined to make an investigation. On the night in question he secured the services of two persons,— Sherring and O'Laughlin,—and visited his former home about 10 o'clock in the evening, and, after some waiting, made the discovery he describes. He is corroborated by the two friends who accompanied him; in all particulars by Sherring, and as to the latter part of the transactions by O'Laughlin. If the story told by these three is not true, they have entered into a conspiracy to destroy the good name of the wife and her alleged paramour by willful and deliberate perjury. McGrail is, of course; an interested party; but there is no evidence to impeach his general character for truth and veracity. Sherring is a detective, and it is urged that his testimony is unreliable. It is true that the testimony of a professional detective is, in divorce cases, to be subjected to close scrutiny, and received with great caution; but it is not to be unceremoniously thrown out. Hurtzig v. Hurtzig, 44 N. J. Eq. 329, 15 Atl. Rep. 537, affirmed 45 N. J. Eq. 869, .19 Atl. Rep. 622. If corroborated by the testimony, of other witnesses or by circumstances, and it is consistent, and not grossly improbable, it should be accorded due weight. One ground of suspicion of such testimony is that it is to the pecuniary interest of the witness to create situations which will compromise the person he seeks to detect, and to bring about or create facts which he is employed to ascertain, and that his compensation is in a measure dependent on his success in that regard. These elements of distrust do not exist to any extent with reference to Sherring's testimony in this case. The situation presented itself, and his compensation, if any, was not dependent on success. He was called on to go more as a witness than as a detective. O'Laughlin, the other witness, is a police officer of Elizabeth, who has no apparent interest in the controversy worthy of consideration, and who stands unimpeached, and no reason is given why entire reliance should not be placed on his testimony. It is true, he was not present when the other two went into the room, but his evidence gives substantial corroboration to their account of the transaction.
It is urged by counsel for Mrs. McGrail that the story related is improbable. The testimony as to the arrangement of the house is very unsatisfactory. As near as I can ascertain the house stands some ten feet back from the street. There are three rooms on the first floor, called the "front room, "the" middle room," and the "kitchen." There is a piazza and an entrance on the side, presumably into the middle room, and an entrance into the kitchen. A bay window in the front room, five feet from the ground, faces the street. The side door is partly of glass, and there is a window on the piazza. Some idea must be had of the arrangement of the house to judge of one objection of improbability, and the above is the most satisfactory I can extract from the evidence. It is too indefinite to base any positive conclusions upon, but sufficient to dispose of one insistment on this head. O'Laughlin testifies that McGrail and Sherring went into the kitchen, while he watched the front door to prevent the escape of anyone; and that he heard them break in the kitchen door. Counsel urges that it is incredible that these parties in the front room would have suffered themselves to be detected in the compromising situation sworn to if McGrail made so much noise getting into the kitchen that O'Laughlin, watching the front door, could hear him; but this depends entirely on the relative situation of the persons. If the door O'Laughlin watched was the entrance into the middle room, and the doors between that room and the front room as well as the kitchen were closed, and if O'Laughlin stood on the walk at the side of the house, it is altogether probable he could have heard a noise at the kitchen door which the persons in the front room did not hear, particularly as his attention was awake to the noise; and, if the story is true, theirs was not. This objection is disposed of, however, by the fact that the testimony of both Mrs. McGrail and Conlon indicates that the first intimation they had of McGrail's visit was when he got into the room where they were, and that they did not hear him either getting into the kitchen or coming through the middle room. It is next urged that the story of these witnesses is improbable from the fact that the bed-clothing was undisturbed. But the bed is no part of the story as related, and it is altogether too speculative to disbelieve a statement as improbable on a surmise as to what means would probably be selected by the accused for the commission of a crime. It is further said that the front curtain of the window was up, and that a person in the street could see into the room. But it is one of the uncontradicted parts of the husband's story that these parties were in the dark when surprised by the entrance of McGrail and Sherring. The visitor Mrs. Berry speaks of a light when she was there. Conlon speaks of Mrs. McGrail lighting her visitor out. Yet a very few minutes after they are in the room with the door closed, and so dark that the husband and his witness made their discovery by lighting matches until the lamp was found, burning so dimly as not even to disclose its whereabouts. Neither Mrs. McGrail nor Conlon deny it was dark in the room, and that McGrail and Sherringlighted matches in order to see. This destroys all point of the argument that it was improbable these parties would be guilty of the acts charged with the window curtain in the condition it was.
Comment is made on the discrepancy of the witnesses as to time. Sherring says he, just after reaching there, heard a clock strike 10, and that it was half-past 10 by McGrall's watch after the trouble was all over. This is the only testimony which pretends to be accurate; the other is simply the opinion of the witnesses. Nothing is more uncertain and unreliable than the testimony of witnesses as to the time occupied in a transaction. There are situations when moments seem hours, and others when time flies imperceptibly; and witnesses should not be discredited be cause of a difference of opinion or judgment on such a point. There is not, in my opinion, sufficient substance in the objections urged to cast reasonable doubt upon the testimony produced by the husband.
The wife and Conlon both deny their guilt. The testimony of the wife is competent, but when it is uncorroborated by any evidence save that of the alleged paramour it cannot be relied on to break down an otherwise established case. It was, of course, necessary for her to explain facts which would not admit of contradiction. Why should she, a married woman, living separate from her husband, harbor a man at that time of night in her bedroom? Mrs. McGrail's excuse for the presence of Conlon that night in her house is that he came there to fix a stove, and that he remained there until she could replenish the fire, when she was going to take him home. She says after letting Conlon in, and her visitor, Mrs. Berry, out, she told Conlon to sit down until she put some coal on the stove, and she would go with him home; that she went to the kitchen, got some coal, and brought it into the front room; had part of the stove open, but had not put any coal on, when her husband rushed into the room, and attacked Conlon. Does her story satisfactorily explain the suspicious facts? Is it probable, and is it corroborated? She says she did not expect Conlon, and he does not pretend he went that evening by appointment; but both agree that he had been there previously to fix the stove, and was not able to do so because there was a fire in it. It clearly appears that the night in question was cold. There is some discrepancy in the testimony whether it was raining or not; but there can be no dispute that it was a night when it was altogether probable there would be a fire in the stove. It is in the last degree suspicious that this man went to the house of a married woman, living separate from her husband, at 10 o'clock on a cold night in March, to fix a stove he knew could not be fixed if it had a fire in it. But why ask him to remain? Her excuse is his intoxicated condition. Evidence shows, I think, he was under the influence of liquor; but it is questionable if to the degree Mrs. McGrail contends for, which would indicate helplessness and probable incapacity. He was sober enough to find the house, come there alone, go to the right entrance, and speak about fixing the stove. He certainly might have been trusted to go a few steps further to his own home. He is shown to have been intoxicated at 6 o'clock in the evening, but it was near 10 when he reached Mrs. McGrail's, and the doctor says when he saw him he was not drunk. The beating McGrail gave him might have had the effect of sobering him, but I do riot believe from the evidence that Conlon was either stupefied or helpless when he went to the house, and I think he correctly describes his condition when he says he was "betwixt and between." His memory is good as to what transpired. He remembers going to the house; the fact that Mrs. McGrail admitted him; that there was a lady visitor there whom Mrs. McGrail lighted to the door; that he spoke of fixing the stove; and the particulars of McGrail's attack on him; the pistol; and what was said, There is no apparent lapse of memory. How far is Mrs. McGrail corroborated? She says Mrs. Berry was at her house from 5 o'clock until near 10. Mrs. Berry says she did not go there until between 9 and 10 o'clock. Conlon swears he heard and saw nothing about getting any coal to put on the fire; that the only thing done after Mrs. Berry left was his arranging to come there on Monday to fix the stove. There is the widest discrepancy in the testimony as to where the lamp was. One says it was in one place and others in another, but all agree that it was dark in the room the parties were found in. This is sought to be accounted for by the fact that the oil in the lamp was low; but why not light another? This lamp was burning when Mrs. Berry was there, Conlon says Mrs. McGrail used it to light her out. She went out, it is presumed, of the middle room door. Why was the lamp left in that room; or, if in the other, found burning so dimly, and the door closed between the two rooms? Why close this door after bringing the coal in, (if it was brought in,) as the parties must pass through it to go out after the coal was put in the stove? It is a significant fact that after McGrail had cruelly beaten Conlon over the head with the butt end of his revolver, and the latter, cut and bleeding, got into his house with the assistance of Mrs. McGrail and some other person, that no mention was made of the true cause of his injury. He tells Mrs. Dingham that he slipped or fell down, and to Dr. Donovan's inquiry how he got the blow, evaded it in some way or other, although he says he told him he was struck, and McGrail's name was mentioned. I am constrained by the evidence to find that the complainant is guilty of the charge made in the cross-bill, and advise a decree in favor of the husband.