Opinion
No. 50/190.
10-16-1922
BARNEY v. BARNEY.
Frank E. Bradner, of Newark, for complainant. Elizabeth Blume, of Newark, for defendant.
Divorce suit by Max Barney against Ida Barney. Decree for petitioner.
Frank E. Bradner, of Newark, for complainant.
Elizabeth Blume, of Newark, for defendant.
CHURCH, V. C. This is a case for divorce on the grounds of adultery. The petitioner alleges that the defendant gave birth to a child of whom he is not the father. The defenseadmits that the child is not the petitioner's, but alleges in extenuation that while in an unconscious condition she was ravished by the corespondent, was entirely unconscious of the fact that she was pregnant until an hour before the delivery of the child, and after she became a mother she remembered that the corespondent had ravished her.
Medical testimony has been introduced to show that it is possible for a woman to be assaulted without her knowledge. There is no question as to the low mentality of the defendant and of the corespondent. She had four legitimate children who are mentally lacking. The corespondent, as medical experts testify, is in an advanced form of paresis. Admitting the medical testimony to be correct, and that such a thing is possible, I cannot bring myself to believe that it is probable.
The woman's demeanor on the witness stand was such as to convince me that she was not telling the truth. For example, she says that while she was making the bed in her bedroom the corespondent approached her from behind, struck her in the breast; and beat her on the front of the shoulder. It would seem logical that if such an assault were committed he would have approached her, not from behind, but in front.
I do not base my conclusion on the testimony of the corespondent in a criminal action for rape, which I have not considered. I base it on the admissions of the defendant herself, and on such testimony as the corespondent gave before me. The testimony of the corespondent, taken alone, would not be sufficient to convince me, but this, added to the admissions of the defendant, and her demeanor on the witness stand, lead me to the conclusion that she was not ravished, but consented to the act of adultery.
I will therefore advise a decree in favor of the petitioner.