Barnes v. Allen , 30 Barb. 663 ( 1860 )

By the Court, Lott, P. J.

The evidence offered by the defendant, of a general report that the plaintiff ill treated his wife, was clearly inadmissible; and as the exception is not noticed in the points of his counsel on this appeal, we assume it to be abandoned. Mor are we able to discover any principle on which the mere statements of the plaintiff’s wife that she was abused by him, without any proof of such abuse in fact, can be a justification for the defendant’s advice to her to leave him, and for his agency in removing her from the house of her husband to that of her father. The husband is entitled to the assistance and society of his wife, and she is not justified in leaving him without cause shown.

Charges or allegations merely that such cause exists are not sufficient; and if they will not justify her in violating her obligations, she cannot, by representing to others that cause exists, by which they encourage, advise and assist her in such violation, extend immunity to them for their acts. On the contrary, whenever a wife is unjustifiable in abandoning her husband, he who knowingly and intentionally assists her in thus violating her duty, is guilty of a wrong for which an action will lie. (Schuneman v. Palmer, 4 Barb. 225, &c.) There was no error therefore in the circuit judge, in instructing the jury that the defendant was bound to show that the plaintiff’s wife was abused, to justify his interference in removing her, and that her statement that she was abused was not sufficiént.

Mor is there any objection to the remark, “that what would excuse a man for harboring a wife, will not excuse an act of interference in the husband’s affairs, either in advising her to leave her husband’s premises or in carrying her away.” In one case, the act is one of protection against an abuse and violation of marital rights; in the other, an aggression on those rights. It is therefore consistent with the principles of justice, that the law should excuse the former, while it demands a justification of the latter. This distinction was recognized in the case of Hutcheson v. Peck, (5 John. Rep. 196,) and must, in our opinion, be sustained. At all events, there is not enough disclosed in the case to warrant us in saying that the remark as made was not correct.

Another question remains to be noticed. It appears that the confessions of the defendant were given in evidence to show his agency in the transaction; and the judge, in speaking of those confessions, instructed the jury that they might believe a part and reject others of the allegations made by him; that they might believe the fact that he admitted, and disbelieve the reasons assigned for it. This rule appears to be fully sustained by Mr. Greenleaf in his valuable treatise on Evidence. He says: “ Although the whole of what is said at the same time and relating to the same subject must be given in evidence, yet it does not follow that all the parts of the statement are to be regarded as equally worthy of credit; but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor as those making against him.” And subsequently, in speaking of confessions by a prisoner, he further says: “ If, after the whole statement of the prisoner is given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so, and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another. For it is not to be supposed that all the parts of the confessions are entitled to equal credit. The jury may believe that which charges the prisoner and reject that which is in his favor, if there are sufficient grounds for so doing. If what he said in his own favor is not contradicted by the eviden.ce offered by the prosecutor, nor improbable in itself, it will naturally be believed by the jury; but they are not bound to give weight to it on that account, but are at liberty to judge of it, like other evidence, by all the circumstances of the case.” (1 Greenl. Ev. §§ 201, 218, 3d ed.)

[Kings General Term, February 13, 1860.

Several authorities are cited sustaining these doctrines. I will only refer to the case of Kelsey v. Bush & Viele, (2 Hill, 440,) where Judge Bronson, in discussing the effect of confessions, says: “ The court and jury are not always bound to give equal,weight and importance to every part of the admission. If that part of the confession which discharges the party is in itself highly improbable, or if there be evidence aliunde, although but slight, tending to discredit it, the jury may believe one part of the confession and reject the other.”

The authorities cited by the defendant’s counsel on this question, all of which are referred to by the learned judge in his opinion, were cases where there was nothing improbable or suspicious in that part of the confession which went to discharge the defendant; and all the other evidence in the case tended to confirm the truth, and do not conflict with the rule laid down by him, nor with that in the case at bar.

The evidence not only established the fact, that the plaintiff’s wife left his house by the advice and agency of the defendant, but also tended to show that he, in such advice and agency, instead of being governed by the reasons assigned by him, was actuated by malice, and that his object was to be revenged for some previous act of the plaintiff. Upon such evidence, the jury were warranted in rejecting the excuse and explanations given by the defendant for his conduct; and the court decided correctly in denying the motion for a nonsuit, and properly instructed the jury, that if they rejected those explanations, and believed that he interfered purposely to remove the plaintiff’s wife from her husband, the action would lie.

Our conclusion upon the whole case is, that none of the defendant’s exceptions are well taken. The judgment must therefore be affirmed, with costs.

Lott, Emott and Brown, Justices.]