Tucker v. Tucker ( 1896 )

Woods, J.,

delivered the opinion of the court.

The action of the court below is complained of by the appellant in twenty-one assignments of error. We notice such only as are necessary to the determination of this appeal.

The sixth, seventh, eighth, and ninth assignments may be disposed of together, and briefly.

The conversations had between appellant and appellee, which, it is alleged, were improperly permitted to go to the jury, because not given notice of in the bill of particulars, occurred long after Norman Tucker had deserted the appellee, and were inadmissible as evidence showing, or tending to show, the substantive offense charged in the declaration. That offense, if ever committed, was long past, and the subsequent conversations of appellant, if offered as evidence to show the independent fact of desertion by reason of appellant’s wrongful persuasion and inducement thereto, were competent, in this aspect, only if they were in the nature of confessions. That they were not of the character of confessions is plain, and, looked at as they are by complaining counsel, they were incompetent. But, looked at as evidence showing, or tending to show, the motive of appellant in his supposed wrongful action, they were competent; for, as counsel for appellant ably and correctly argue throughout their exhaustive brief, the motive of the appellant was a question of the first importance. If these conversations are given their fair and legitimate construction, they should be found to be helpful to the defense, for, in one of them, the appellant — the father of appellee’s husband — -expressed to appellee the opinion that it would be best for appellee and her husband to remain apart. But, however a jury may regard this, we think they were competent as tending to show motive in appellant.

The tenth, eleventh, twelfth and thirteenth assignments may be properly considered together. It was sought to show by Imogene Hyatt that she had, some time before the trial of the cause, been arrested, with a male companion, in a house of ill fame in Indianapolis, in the state of Indiana. This the court refused to permit to be done by appellant’s counsel on their cross-examination of the witness, but, on re-examination, allowed the witness to make an extensive statement as to circumstances offered to show and tending to show that, on that occasion, by the machinations of appellant and others nearly related to him, she was entrapped into that dishonorable position. After this re-examination, appellant’s counsel proposed to cross-examine the witness on this new evidence, and their request was twice refused. That the course pursued by the court was unfair to the appellant, is. manifest, and that it was essentially prejudicial to appellant, is too clear for disputation. The witness was permitted to make quite a full statement of facts as to her being arrested in a house of prostitution, and as to her having been “entrapped” therein by the appellant’s agency, as the necessary implication was, and then the door to all further inquiry on this line was closed, thus leaving the appellant to the mercy of the jury, branded by the witness as one who had wickedly had her entrapped into the horrible situation indicated, and whose mouth, as well as that of his accusatory witness, was absolutely shut to any defense he might have been able to make to this damning evidence against him.

Now, the character of a witness for truth may not be impeached by showing her to be of probable unchaste character, and the evidence as to Mrs. Hyatt’s having been arrested in the brothel was, in the first instance, properly excluded; but the court should have continued to exclude it, and, assuredly, in common fairness, it should not have been permitted to be used by appellee to her heart’s content, and any attempt to examine into it have been denied appellant. The effect of this action of the court was, we repeat, necessarily, and immensely, prejudicial to appellant.

Before proceeding now to consider the mistake of law which runs through the instructions generally, we desire to call attention to the ambiguity of the language of appellee’s first charge. By it the jury were told that they were “the exclusive judges of the evidence, its weight and effect, and of the credibility of the witnesses. ’ ’ For appellant, it is earnestly contended that by this charge the jury were told that they were judges of the weight of the evidence and of its legal effect. In other words, that they were made judges of the law as well as of the facts. Of course, the answer of appellee’s counsel is that this is not the natural or reasonable interpretation of the charge, and that by the use of the word effect, the jury were intended to be informed, and, in fact, were only informed, that they were the judges of the weight of the evidence and of its value as showing what facts might be said to be fairly established by it. That able and accomplished and upright counsel differ so widely as to the meaning of the language, makes it, at least, not amiss to suggest the obviation of this objection by other and unambiguous language on another trial.

A few general observations on the law applicable to the conduct of a parent in counseling and advising a married child, in cases of this character, will suffice to show the erroneous view which prevailed in the trial below, without considering seriatim the charges given and refused, or modified by the court.

In every suit of this character, the prime inquiry is, from what motive did the father act? Was it malicious, or was it inspired by a proper parental regard for the welfare and happiness of the child? The instinct and the conscience unite to impose upon every parent the duty .of watching over, caring for, and counseling and advising the child at every period of life, before marriage and after marriage, whenever the necessities of the child’s situation require or justify such action on the parent’s part. The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not, and cannot be, destroyed by the child’s marriage. Multiplied instances will occur to the mind in which a failure of the father to speak and to act would be regarded with horror. A daughter who has recklessly contracted an undesirable marriage with a man utterly unworthy to be the husband of a virtuous woman, against the wish and over the vigorous protest of the father, and who has, by such ill-starred union, been brought to wretchedness and humiliation and want of the ordinary comforts of life, may surely be advised, counseled, and cared for in the paternal home, even against the will and expressed wish of the unfaithful husband. The question always must be, was the father moved by malice, or was he moved by proper parental motives for the welfare and happiness of his child? In his advice, and in his action, he may have erred as to the wisest and best course to be taken in dealing with a question so delicate and so difficult, but he is entitled, in every case, to have twelve men pass upon the integrity of his intentions.

The third, fourth, and seventh instructions given for the appellee ignore this rule of law, and put the father upon the footing of a stranger who intervenes between husband and wife, and they are therefore erroneous. For the same reason, the first, ninth, eleventh, and twelfth instructions asked by appellant should have been given as asked, and without the modifications made by the court.

Cases of this character do not abound, and the present appeal presents the question of the father’s liability for the first time in our courts. The learned court, and able counsel for appellee, misconceived the liability of the parent, and held him to the rigid accountability imposed upon strangers who invade the domestic circle and separate husband and wife. See Hutcheson v. Peck, 5 Johns. (N. Y.), 195; White v. Ross, 47 Mich., 173; Burnett v. Burkhead, 21 Ark., 77; Payne v. Williams, 4 Bax. (Tenn.), 583.

Reversed and remanded.