Mosser v. Mosser , 29 Ala. 313 ( 1856 )

STONE, J.

1. Slaves, although property, and free persons of color, are, under our system, regarded as persons for many purposes. — See Code of Alabama, § 2, ¶ 4; § 3805, and others. Crimes may be perpetrated against them by white persons, and the punishment in such cases is little less severe than for offenses of similar grade against white persons. — Code, tit. 1, ch. 2, art. 7, p. 591. They are reasonable creatures in being,” cared-for alike by our laws, and by the commonest dictates of humanity. Section 1961 of the Code declares, that “the court of chancery has power to divorce persons from the bonds of matrimony, in favor of either party, for adultery.” The question is presented, can this offense be committed by sexual connection with a slave? Without announcing what would be our decision, if the question were presented under section 3281 of the Code, we think the bill in this case sufficiently charges adultery, as contemplated by the statute. Words in a statute are presumed to be used in their popular sense, unless a different intention appear. — Thurman v. The State, 18 Ala. 276. There is nothing in this part of the Code, which indicates a different intention ; and we hold, therefore, that the legislature intended to give relief in all cases of “ unfaithfulness of a married person to the marriage bid.”— Smitherman v. The State, 27 Ala. 23.

2. The appellant was not required by the law to swear to his answer ; and he cannot claim any advantage, or demand fuller proof, by reason of such unauthorized oath. — Moyler v. Moyler, 11 Ala. 621 ; Hughes v. Hughes, 19 Ala. 307.

3. A respectable author, Shelford on Marriage and Divorce, p. 405, has well said, “Adultery, being an act of darkness and of great secrecy, can hardly be proved by any direct means and “ that presumptive evidence alone is sufficient proof.” The same author says, quoting from Lord Stowell, “ It is a fundamental rule of evidence upon this subject, that it is not necessary to prove the direct fact of adultery.” — lb. “ The only general rule that can be laid down on the subject, is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion.” — Shelf, on Marriage and Divorce, p. 406. In one case, it was held, that “ adultery may be inferred -from the-general cohabitation of the parties, without proof of particular facts, although the parties have separate beds.” — Loveden v. Loveden, 2 Hagg. Cons. R. 4. The court, says Lord Stowell, “ will judge of facts as other men of discernment,, exercising a sound and sober judgment on circumstances that are duly proved before them.” — See, also, Poynter' on Marriage and Divorce, 188-9. In our own court,, the subject has been under discussion. In Richardson v. Richardson, 4 Porter, 467, Justice Henry G-oldthwaite- announced the rule, that “ the fact is inferred from circumstances, that lead to it by fair inference as a necessary conclusion,” The question came again before the court in, Collins. v. The State, 14 Ala. 608, upon an indictment for adultery ; and the court held the conviction right, though Sounded an circumstances, without proof of the direct fact. — See, also, Glaze v. The State, 9 Ala. 283 ; Crowley v. The State, 13 Ala. 172.

4. I think the charge in this case is sufficiently sustained by the testimony, but my brothers think it insufficient to justify the inference that ■ adultery was committed — that the circumstances do not “ lead to it by fair inference, as a necessary conclusion;” but that they are all susceptible of a reasonable interpretation, consistent with the innocence of Mr. Mosser. — Richardson v. Richardson, supra.

The decree of the chancellor, except as to costs, is reversed, and a decree here rendered, dismissing the complainant’s bill. Let the costs in the court below.be paid by appellant, and the costs of this court- by the next friend of appellee.— Gray v. Gray, 15 Ala. 779.