Opinion
09-03-1886
PULLEN v. PULLEN.
G. O. Vanderbilt and W. D. Holt, for complainant. W. Y. Johnson and J. P. Stockton, Atty. Gen., for defendant.
G. O. Vanderbilt and W. D. Holt, for complainant.
W. Y. Johnson and J. P. Stockton, Atty. Gen., for defendant.
BIRD, V. C. Having advised that the ruling of the master, rejecting testimony which was offered by the defendant, was erroneous, the complainant's counsel ask for my conclusions in writing, because they desire to appeal. The petition is for divorce from the bonds of matrimony because of the adultery of the husband. The defendant had been examined in chief. He had been cross-examined, also, and, among other things, respecting his previous relations with his wife. To some of the questions put upon cross-examination, respecting their conjugal intercourse, objections were made, and sustained by the master. At length, as the master has it upon his notes, Mr. Stockton said:
"In order not to waste time, I will state to the master that my object is to prove that Mr. Pullen made no effort to get his wife to come back; that he drove her improperly from his house, by cruelty, and, connecting that with his employment of Mrs. Lane at so early a period, to show the preparations for the commission of the act charged in the bill. Also to show, from his own admissions, the state of affection between his wife and himself at the time; that is, to show the absence of affection on his part towards his wife at the time he employed Mrs. Lane. I claim that this, in the form that it is put, is all proper cross-examination, as it simply develops further the motives and reasons which induced him to employ a housekeeper, and created, what the evidence in chief attempts to show, the necessity of a housekeeper."
The master overruled the offer, because he thought it was not a proper cross-examination, and because the petitioner is precluded from inquiring into facts not set up in the petition.
In my judgment the master was in error. The witness was the defendant, and it would be altogether too limited, and tend to defeat the true exposition of a case, to follow his view of the law. It is true the counsel for defendant says that he framed his questions so as to prevent any cross-examination of the witness upon the things involved in the propositionsof the attorney general. But a cross-examination is never limited or controlled by the mere words and phrases used in direct examination. If this were so, the truth might forever be suppressed, and the greatest aid in devolving it, i. e., a cross-examination, rendered of no avail. For example, the defendant is charged with adultery. It is admitted that he denied this emphatically upon direct examination. The insistment of counsel for defendant is to the effect that you can only inquire upon cross-examination whether or not the defendant did or did not commit such act. In my judgment, such examination in chief opens the way for the fullest cross-examination into the relations of the parties at or about the time of the alleged adultery. Whatever is unhusband-like, whatever is evidence of unfaithfulness, whatever looks like cruelty, whatever shows an alienation of affection or estrangement, he may be examined about. Of course, it must be within a reasonable time, for, in most cases, if not within a reasonable time, the doctrine of condonation would apply. This doctrine as to cross-examination pervades the practice in all courts, civil and criminal. A defendant swears that he is not indebted to the plaintiff upon the note, bond, or other obligation named in the declaration. Does that limit the inquiry, and preclude the plaintiff from the most minute and detailed examination respecting the transaction out of which the bond or other obligation originated, or as to what has transpired between the parties since? Certainly not. Again, since criminals are permitted to testify in their own behalf, do they complete their defense, and close the door of inquiry, by denying the commission of the crime with which they stand charged? Certainly, nothing is plainer than that they may, after such denial, be inquired of with respect to whatever he may have said or done, or wherever he may have been, so far as either will shed any light upon the perpetration of the alleged crime, or his relation thereto. These illustrations, which are daily presenting themselves in every judicial tribunal, must suffice. Therefore it seems to me that it may safely be regarded as a rule of universal application that, where a party to a suit denies the principal allegation or charge made against him in his direct examination, he thereby lays himself liable to a cross-examination upon every circumstance or transaction with which he was connected which may tend to establish the allegation or charge. Hence I will advise that the ruling of the master be reversed, and that the appeal therefrom be sustained, with costs.