Opinion
06-17-1914
WAER v. WAER.
Petition for divorce by Joseph W. Waer, Jr., against Elizabeth A. Waer. Petition dismissed. B. W. Ellicott, of Dover, for petitioner. Willard W. Cutler, of Morristown, for defendant.
Petition for divorce by Joseph W. Waer, Jr., against Elizabeth A. Waer. Petition dismissed. B. W. Ellicott, of Dover, for petitioner. Willard W. Cutler, of Morristown, for defendant.
The petition charges the defendant with having committed adultery with one Johnston. The evidence is entirely circumstantial. The defendant and her husband and the corespondent and his wife lived in the same neighborhood, and the friendship of the two couples was intimate. Out of this grew a forbidden affection between the defendant and the corespondent, which is manifested by a letter she wrote to him on June 12, 1913, as follows:
"My Dearest Sweetheart: Excuse shortness of this note, but I have my hand about full attending the sick, beside doing the housework. No snap when you have three men and a big house to work for. Sis doesn't seem to be any better, altho' the Dr. says it isn't anything serious. Suppose I have been a big disappointment to you of late, but I am doing the very best I can under the circumstances that exist just now. I am certainly up a tree, but that doesn't make me love you any the less. Can't understand where he gets all his information from. He ask me to take a walk and count ties with him, so he must be wise to something. To explain just how I feel towards you would be impossible. I love you with a love that never fades out of one's heart or soul. I sit around thinking about you all the time. Think of you in my sleep and you are my first tho't on awakening. If you do go away send me a postal from time to time so I will know where you are and how you are. If you think it will make you happier to go away, then go, you will at least be free from nagging. When gone don't forget you left one behind that loves you dearly and will always be longing to hear from you and for the time when she might join you. He a good man and remember me as a true sweetheart suffering everything for her child. Lovingly yours"
The letter abundantly evinces a mind willing to commit adultery if opportunity offered. The evidence does not show that the parties ever met alone after it was written. The letter does not disclose when the defendant's affections first became defiled, nor anything more than guilty intentions, self-reproach, and a willingness to submit herself to the embraces of the corespondent. It proves but one of the group of circumstances necessary to establish the crime charged. That the corespondent shares in the defendant's illicit desires, and that these mutual desires were of considerable duration when the letter was written, is made out by the testimony.
To find in the evidence the remaining essential of proof, viz., that the parties had opportunities to indulge their passions, is more troublesome. I was impressed at hearing with the weakness of the petitioner's case on this point, and a careful reading of the testimony strengthens this impression. That the parties often met in the company of others and then paid each other marked attention, that they secretly corresponded and conversed over the telephone, and that they sometimes met and conversed on the public streets is shown. That the defendant was a daily and persistent caller at the home of the corespondent, even after these visits were twice resented by the justly jealous wife of the corespondent, is an uncontroverted fact. On these occasions she was sometimes accompanied by her husband, other times by her six year old child, and sometimes she went alone; but it does not appear that she ever called, accompanied or unaccompanied, when the wife of the corespondent was not present, except once, and at this time her child was with her. There evidently had been some arrangement between the two women to go to a vaudeville show, and, when she called and was informed by the corespondent that his wife was not at home, the defendant did not enter. She met the wife at the entrance to the apartment house in which the corespondent lived, and together they walked down the street and afterwards met at the theater. A woman friend of the husband's family testified that she saw the defendant and corespondent at a merry-go-round early one evening, after dusk, and that, in the shadow of a frying-pan blow-light, he learned over the defendant as if to kiss her, and that the two then passed the witness in the glare of the light going in the direction of a fence, where it was dark; how far she does not say. The defendant's child was riding on the merry-go-round. The son of this same witness, a young boy, said that he saw the corespondent one evening after dark, standing on the canal towpathunder a bridge, talking with a woman he did not recognize, although he knew the defendant, and that the defendant's daughter was playing near by. The father of the petitioner twice saw the two talking together, in the daytime, on a prominent street of their town; and another witness testified that she saw them conversing on the street one afternoon.
This summarizes all of the testimony on this phase of the case. The defendant and the corespondent's wife during this time were inseparable companions. The association of the two was much influenced, I think, by the defendant's liking for the companionship of the corespondent, and was fostered by her as a means to that end. Although the friendly relations between the two women were interrupted twice when the wife told the defendant she did not care to have her call, because of suspected intimacy with her husband, reconciliations immediately followed each, and the former friendship was renewed. Undaunted and insistent as the defendant was in seeking the society of the corespondent at his home, there is not a tittle of testimony from which may be inferred that there was opportunity at these times to sin. There was none when she called with the child and found the corespondent alone. The presence of the child, an intelligent little girl, would have deterred them. The testimony of the mother and son, to which I have referred, especially that of the mother, is not entirely trustworthy. It is hard to believe that, enamored as the corespondent was of the defendant, he would be so reckless as to attempt to kiss her under the gaze of the multitude at the merry-go-round, or that the defendant left her little daughter unguarded at this place of amusement and in the view of her neighbors sought the shelter of darkness to appease the gnawings of lustful cravings. The son's testimony is inferential, in effect. If it is true, as he said, that he saw the corespondent and the defendant's daughter, that the corespondent stood with a woman in the shadow of the bridge, that he knew both, but only recognized the man, it seems strange that the connection between the child and the woman was not sufficiently attracting to cause him to identify the defendant. It is also odd that these two, mother and son, friends of the petitioner's family should have witnessed these happenings at different times. I am inclined to think that they drew somewhat upon their imaginations. Opportunities of the kind thus endeavored to be proved are not of the character required to satisfy the judicial mind. Offenses of this sort are seldom committed where detection is imminent. They are secret and not public perpetrations. The proof of opportunities, complementary to evil intentions, necessary to circumstantially establish a charge of adultery, must put the parties in some place together where the adultery might probably have been committed. Davidson v. Davidson, Deane & S. 132, 135. The testimony falls short of this requirement, and upon this feature of the case my mind is not satisfied. The evidence as a whole is calculated to excite suspicion. The crime may have been committed, but, upon a charge so serious as this one, suspicion is not proof, and speculation and conjecture are out of place.
I have not overlooked the fact that the corespondent in the giving of his depositions before a commissioner, when asked whether he had ever committed adultery with the defendant, refused to answer on the ground that to do so might incriminate him. An inference that the criminating fact embodied in the question exists is not to be drawn because of this claim of privilege. Wigmore on Ev. p. 3147. The privilege may have been disingenuously pleaded, for the witness did depose that he was never alone with the defendant any appreciable length of time, which statement is in direct conflict with the grounds on which the claim to privilege was rested. O'Brien v. O'Brien, 30 Atl. 875.
The petition will be dismissed, with costs.