Preston v. Bowers , 13 Ohio St. (N.S.) 1 ( 1861 )

Brineerhoee, J.

The plaintiff had a right to give in evidence the declarations of his wife made recently prior to the alleged seduction, in order to show the state of her feelings toward him at that time (1 Greenl. Ev. § 102; Palmer v. Crook, 7 Gray’s Rep. 418); and inasmuch as her declarations, given in evidence in this case, were all made at a time shortly before the seduction alleged, we can see no good reason why a distinction should be taken between those made before and those made after the marriage. Before marriage, the plaintiff could have no legal claim upon the affections of the woman he was courting; and if the object of giving her 'declarations in evidence had been to show that Griffin had been guilty of a wrong, her declarations made before mar-' riage would, for this reason, as well as others, be inadmissible. But her declarations were admissible for no such purpose. They could be given only to show the state of her affections toward the plaintiff shortly prior to the alleged seduction, and we are not prepared to say that the intervention of a marriage between the parties so far alters the presumptions of fact arising from evidence of this kind, as to demand the exclusion of declarations made by her prior to the marriage, if they were made as recently prior to the alleged seduction as to give rise to the reasonable presumption of the continuance of the state of mind indicated by them up to the time of the alleged seduction.

The plaintiff had a right to give the declaration of his wife in evidence, to show the state of her affections toward him recently before the alleged seduction. But the exercise of a right and the abuse of a right are two very different things. The words and acts of the defendant, Griffin, reported by the wife to the husband, and detailed by him in evidence to the jury, were nothing but hearsay, and, in themselves,'clearly inadmissible.

It is said in argument, however, that the declarations of the wife in regard to the state of her affections toward the plaintiff, were so blended with her report of the acts and declarations of Griffin as to render the separation of them impracticable. We do not think so. It seems to us there would have been no practical difficulty in a statement of those declarations of his wife which tended to express attachment to him, and at the same time withholding her report of the words and acts of Griffin. And we can not avoid the conviction, that while the plaintiff was claiming to give in evidence the declarations of his wife for a legitimate purpose, his real and primary object was to bring before the jury her statement .of the words and acts of Griffin. In permitting this to be done, we are of opinion the court below erred.

In admitting testimony as to declarations made by Mrs. Preston, wife of one of the defendants, we can not say that there was error. True, she is not now a party to the suit;, yet she stands charged in the petition with being a conspirator with her husband and Griffin in committing the injury complained of. Her declarations which, so far as the record discloses, were given in evidence, certainly were not, in themselves alone, legitimate evidence against the defendants;' those declarations having been made in the absence of the defendants, and never having been communicated to plaintiff’s wife. The defendants being absent, no presumption of assent to or'responsibility for her declarations, on their part, can exist; and never having been communicated to the plaintiff’s wife, they could not have been instrumental in the furtherance of the conspiracy charged in the petition. If the evidence in respect to the conduct of Mrs. Preston stopped here, it was the duty of the court, if requested, to instruct the jury to disregard her testimony; and the presumption is that the court performed its duty in this respect. But Mrs. Preston being charged as a conspirator, it was competent for the plaintiff to make his charge in that behalf good by proofs; and having done so to the satisfaction of the jury, then other declarations of her’s which might be given in evidence, as well as her acts, would become evidence against the defendants, provided those declarations were made in furtherance of the common design — tending to effectuate the object of the conspiracy — and so becoming not mere words, but verbal acts. Fouts v. The State, 7 Ohio St. Rep. 471. Now, the declarations of Mrs. Preston, given in evidence and excepted to, tended, in connection with other evidence which may have been given, to prove the conspiracy charged in the petition; and for this purpose they were competent. Whether such further evidence was given in the case as would make them finally relevant to the issue, we are not informed; for the bill of exceptions contains only a statement of detached portions of the evidence. And in the absence of any showing in the record to the contrary, it is to be presumed either that such further evidence was given,. • or that the jury were instructed to disregard the declarations of Mrs. Preston.

Under the circumstances disclosed in the bill of exceptions, there was no impropriety and no error in the fact that the court, at the request of the jury, gave them further instructions in the absence of plaintiff in error and his counsel. Crusen v. The State, 10 Ohio St. Rep. 258.

Judgment reversed, and cause remanded.

Sutliff, 0. J., and Peck, Gholson and Scott, JJ., concurred.