Opinion
(Filed 20 November, 1912.)
1. Divorce — Adultery — Circumstantial Evidence — Questions for Jury.
In an action for divorce on the ground of adultery of the wife, the act of adultery is not required to be proved by direct or positive evidence, but it may be established by circumstantial evidence, which is sufficient to establish it if it produce conviction in the minds of the jury by a preponderance of the evidence.
2. Divorce — Adultery — Disposition and Opportunity — Instructions — Appeal and Error.
In an action for divorce on the ground of adultery, under conflicting evidence it is error for the judge to charge the jury that if the adulterous disposition of the parties is shown, and it appears that there was an opportunity to commit the offense, these facts are sufficient to establish the adultery; for such would be an invasion by the judge of the province of the jury, unless construing the charge as a whole it could readily be seen that the jury were not thereby misled.
APPEAL, by defendant from Whedbee, J., at July (Special) Term, 1912, of DURHAM.
Bryant Brogden for plaintiff.
Manning Everett for defendants.
BROWN AND WALKER, J. J., concurring.
The facts are sufficiently stated in the opinion of the Court by Mr. CHIEF JUSTICE CLARK.
The court charged: "Evidence to prove adultery may be direct, as where the parties are seen in the act, or it may be indirect or circumstantial, and the charge of adultery may be sufficiently proved by evidence of circumstances leading to an inference of guilt... (516) These facts and circumstances must lead your minds to the conviction of the truth; that is, the plaintiff must lead your minds to the conclusion that adultery was actually committed before you would be warranted in answering the third issue `Yes.' "We find no error in the above instruction. In S. v. Rinehart, 106 N.C. 790, Davis, J., says: "From the very nature of the offense, it is usually proven by circumstances, rarely by positive and direct evidence of the adulterous act," citing S. v. Eliason, 91 N.C. 566; S. v. Poteet, 30 N.C. 23. His Honor was simply telling the jury that circumstantial evidence would be sufficient to establish adultery, if it produced conviction in the minds of the jury, by a preponderance of the evidence. He had already charged them: "You must not only find that Mrs. Burroughs' conduct was indiscreet, but you must go further than that, and find more than that, more than that she smoked and drank and associated with Mrs. Carrigan and others, or that her conduct was not such as it ought to be, but you must be satisfied from the evidence and its greater weight" that she actually had illicit sexual intercourse with Mr. Galloway."
His Honor, however, further charged the jury: "If an adulterous disposition on the part of the defendant and the alleged paramour is shown, and it appears there was an opportunity for them to commit the offense, these facts are sufficient to establish adultery."
Taking the charge as a whole, we can hardly believe that the learned judge intended to express an opinion that an adulterous disposition and a convenient opportunity was sufficient evidence to establish adultery. But his language enunciates that proposition, and we do not think that it can be sustained. It is true, as Walker, J., well says, in Kornegay v. R. R., 154 N.C. 392, "We are not permitted to select detached portions of the charge, even if in themselves subject to criticism, and assign errors as to them, when, if considered with the other portions of the charge, they are readily explained and the charge in its entirely appears to be correct. Each portion of the charge must be construed with reference to what precedes and follows it," citing S. v. Lewis, 154 N.C. 634. But the paragraph above quoted is so calculated, though not so (517) intended, to mislead the jury, that we cannot feel sure that it was not misunderstood and may not have affected their verdict.
Error.