Although, because of their clandestine nature, adulterous acts are usually proved by circumstantial evidence; Zeiner v. Zeiner, 120 Conn. 161, 165, 179 A. 644 (1935); the circumstances must be such as to lead the guarded discretion of a reasonable and just person to the conclusion of guilt. Brodsky v. Brodsky, supra, 301; Zeiner v. Zeiner, supra; Neff v. Neff, 96 Conn. 273, 275, 114 A. 126 (1921). The adulterous relationship must be established by a fair preponderance of the evidence.

Charles H. Fuller Co. v. St. Louis W. Drug Co., 219 Mo.App. 519, 282 S.W. 535, 538; Traber v. Hicks, 131 Mo. 180, 186, 32 S.W. 1145; State v. Patton, 255 Mo. 245, 254, 455, 164 S.W. 223; Bredel v. Parker-Russell M. M. Co., Mo.App., 21 S.W.2d 932, 935; Britian v. Fender, 116 Mo.App. 93, 92 S.W. 179; House Wrecking Co. v. Sonken, 152 Mo.App. 458, 133 S.W. 355; Milne v. Chicago etc. Railroad, 155 Mo.App. 465, 135 S.W. 85, 88. Traber v. Hicks, 131 Mo. 180, 32 S.W. 1145; Crowell Bros. v. Panhandle Grain and Elevator Co., 8 Cir., 271 F. 129; Reineke v. United States, 8 Cir., 278 F. 724; Neff v. Neff, 96 Conn. 273, 114 A. 126; State v. Burns, 25 S.D. 364, 126 N.W. 572. Appellants' assignment which sets out forty-four of the court's findings separately and asserts error as to each one in that there was no competent evidence to support it, has afforded occasion to compare each one of the questioned findings with the evidence in the record concerning the same.

Although, because of their clandestine nature, adulterous acts are usually proved by circumstantial evidence; Zeiner v. Zeiner, 120 Conn. 161, 165, 179 A. 644 (1935); the circumstances must be such as to lead the guarded discretion of a reasonable and just person to the conclusion of guilt. Brodsky v. Brodsky, supra, 301; Zeiner v. Zeiner, supra; Neff v. Neff 96 Conn. 273, 275, 114 A. 126 (1921). The adulterous relationship must be established by a fair preponderance of the evidence.

The ruling permitting the notes to be examined was correct. If a witness, when testifying, uses a document to refresh his recollection, that document thereby becomes available for examination by the opposing party. State v. Grimes, 154 Conn. 314, 323, 228 A.2d 141 (1966); Neff v. Neff, 96 Conn. 273, 280-81, 114 A. 126 (1921). A pro se party who takes the witness stand is treated like any other witness.

The admission of that statement in this case is also distinct from the situation where a prior statement is admitted into full evidence as past recollection recorded. See State v. Rado, 172 Conn. 74, 79, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1335, 51 L.Ed.2d 598 (1977); Neff v. Neff, 96 Conn. 273, 278-79, 114 A. 126 (1921). In its charge to the jury, the trial court in State v. Dolphin, 178 Conn. 564, 424 A.2d 266 (1979), stated, inter alia: "`In this case, you have heard testimony from David Andrews and Edgar Gagnier who testified that they participated in this crime with the defendant, Dennis Dolphin. The defendant attempted to impeach their testimony by inferring, through cross-examination, that their testimony was not truthful and was influenced by reason of the state dropping certain criminal charges against them and allowing them to plead to a lesser offense than the ones they were originally charged with when arrested.

This is especially true in view of the fact that the first time Santoro testified the defense objected to the state's attempt to offer the very evidence he now claims should have been allowed. It is apparent that the report was available at that time. It is also probable that defense counsel had it in his possession after the direct examination of the witness. Neff v. Neff, 96 Conn. 273, 278-79, 114 A. 126 (1921). Further, even assuming arguendo that the ruling of the court was not within its discretion as discussed above, the exclusion of that facet of the evidence could not have affected the verdict.

Under the evidentiary rules of present recollection refreshed, the memorandum must stimulate the recollection of the witness "so that he may testify from a present recollection." Neff v. Neff, 96 Conn. 273, 278, 114 A. 126; Card v. Foot, 56 Conn. 369, 374, 15 A. 371; McCormick, Evidence (2d Ed.) 9. Although the question whether the witness' recollection has been refreshed is a determination to be made by the trial court and is ordinarily not reviewable, where, as here, it is unmistakable that the witness simply read the memorandum without having any independent recollection of its reference to a detail (here, the date), the conclusion of the trial court cannot be sustained. State v. Perelli, 125 Conn. 321, 327, 5 A.2d 705.

In the case of the past recollection the memorandum may be laid in evidence as a part of the direct examination, while in the case of the present recollection it may not, since it is the recollection, not the memorandum, which is the evidence." Neff v. Neff, 96 Conn. 273, 278-79, 114 A. 126. The defendant claims support for his position in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, where the court held that it was a violation of the defendant's constitutional right to permit the state's attorney to use a confession signed by an accomplice to refresh the accomplice's recollection when he was called as a state's witness and relied on his privilege to refuse to answer.

Had the report been used to refresh the recollection of the witness while testifying, it is unquestioned that defense counsel would have a right to examine the report. State v. Grimes, 154 Conn. 314, 323, 228 A.2d 141; Neff v. Neff, 96 Conn. 273, 280-81, 114 A. 126. In this case, the witness did refresh his recollection, not while testifying but prior to the time he went on the stand.

Since the witness obviously used a document to refresh his recollection, the plaintiff's counsel had a right to examine it. State v. Grimes, 154 Conn. 314, 323, 228 A.2d 141; Neff v. Neff, 96 Conn. 273, 281, 114 A. 126; 3 Wigmore, Evidence (3d Ed.) 762. The court in its discretion could certainly refuse to admit the deposition on the ground that the plaintiff was deprived of complete cross-examination. F. Thill's Sons Co. v. Perkins Electric Lamp Co., 63 Conn. 478, 485, 29 A. 13. There has been no showing that the court abused its discretion in ruling that the refusal of the witness and the defense counsel to permit inspection of the document unduly restricted the plaintiff's right to a full cross-examination. The plaintiff sought damages for loss of sales of franchises, yearly royalties, commissions on equipment and supplies, expenses in developing his distributorship, loss of profits from business which would have existed had the defendant performed his contract, and loss due to anticipated termination of the distributorship franchise (which had occurred at the time of the hearing).