Sherman Austin against Ruth Austin, 10 Conn. 221

Bissell, J. The only question arising on this motion, is, whether the decision of the judge on the circuit, rejecting the evidence offered, was correct. On the trial, the respondent denied that she had committed the crime of adultery; and she further insisted, that if the act had been committed, it was by the connivance of the husband, and his collusion with Avery.

It is now to be taken for granted, that the charge of adultery was satisfactorily proved ; and it ⅛ not now material to inquire what was the character of the evjfjericftj by which the charge was supported. qphe testimony in question was offered for two purposes : I. To prove the collusion alleged ; and 2. To repel the presumption against it, arising from the mar riage relation. If not admissible for either of these purposes, it was properly rejected. 1. Was it admissible to prove collusion 1 The testimony, to say the least of it, is very remote.

But can any fair presumption or inference be drawn from it, as to the matter in issue 1 The argument assumes this broad ground, that if it can be proved, that the husband has committed

an act or acts of unkindness towards his wife, it may thence be inferred, that he has conspired against her chastity. Can it be necessary to adduce arguments to refute so monstrous a proposition ? You might as well prove, that he possessed a morose, unsocial temper ; that he neglected his family ; or that he was addicted to habits, which disqualified him for the enjoyment of domestic life. The inference might quite as safely be drawn, in the one case, as in the other.

But the evidence offered is not irrelevant merely ; it is obnoxious to this further objection, that if admitted, it would lead to inquiries to which no reasonable limits can be assigned. The claim is, to go back “ for a long time,” and to prove “ repeated acts” of unkindness. It proposes to summon a man’s domestics and to lay open the history of his domestic life.

Now, supposing the husband to come prepared for such a course of inquiry, it is clear, that the proofs offered might be met; that the facts proved, might be disproved, or palliated, or excused ; and where the inquiries might end, it would be difficult to foretell. It is not, however, difficult to see, that the minds of the triers would be distracted, and drawn away from the issue put to them. 2. Was the evidence admissible to repel the presumption mentioned 1 If it was not relevant for the other purpose; if it did not tend to prove collusion ; it is not easy to see how it conduced to repel the presumption.

The question in issue, so far as this branch of the defence was concerned, was this : has the peti tioner been guilty of collusion 1 Evidence is offered, which has not the remotest tendency to prove the issue ; but is claimed to be admissible as tending to repel the presumption of innocence. Can there be the slightest foundation for this claim ? If the testimony be irrelevant for the one purpose, it is equally so for the other; and in the one case as well as in the other, would lead to inquiries equally interminable.

It has, however, been contended, that this case falls within the principle decided in the case of The State v. Watkins, 9 Conn. Rep. 47. That case went, perhaps, as far as is consistent with principle ; but I think it clearly distinguishable from the present. There, proof of an adulterous intercourse was received, not for the purpose of proving the corpus delicti. The case assumes, that a murder was proved to have been committed, by some one. The evidence was admitted to show, that the prisoner had a motive for committing the offence ; and on this single ground was its admission sanctioned by this court.

Here the evidence was offered to prove the collusion, or to repel the presumption of innocence, growing out of the marriage relation. I think it irrelevant for either purpose. The motion, therefore, must be over-ruled. The other Judges were of the same opinion, except Peters, J,, who was absent. New trial not to be granted.