Summary
In Powell v. Powell, 198 Miss. 301, 22 So.2d 160 (1945), this Court reversed because the chancellor would not permit a fifteen-and-one-half-year-old son of the parties to testify on behalf of the father in support of his charge of adultery.
Summary of this case from Jethrow v. JethrowOpinion
No. 35853.
May 14, 1945.
APPEAL AND ERROR. Witnesses.
In husband's divorce action on charge of adultery, refusal to permit 15 year old son of parties to testify as witness on husband's behalf in regard to certain circumstances strongly tending to establish adultery charge constituted reversible error.
APPEAL from chancery court of Jones county, HON. J.R. BUCHANAN, Special Chancellor.
G.W. Hosey, of Laurel, for appellant.
The refusal of the court to permit the son of the appellant and the appellee to testify was error.
The evidence in this case proves guilt of adultery on the part of the appellee beyond a reasonable doubt, which is far more than is required in cases of this nature.
Banks v. Banks, 118 Miss. 783, 79 So. 841; Hulett v. Hulett, 152 Miss. 476, 119 So. 581; Tewksbury v. Tewksbury, 4 How. (5 Miss.) 109; Armstrong v. Armstrong, 32 Miss. 279; Pulliam v. Pulliam, Freem. Chan. 348; Betts v. Betts, 1 Johns, Ch. Rep. (N.Y.) 198; 9 R.C.L. 328, 330, Secs. 105, 106, 108; 19 C.J. 128, 129, Secs. 337, 338, 339.
A.S. Scott, of Laurel, for appellee.
When the father of a family introduces the juvenile members of it in such a litigation as this has been, it cannot be done without its being considered as a forlorn effort of parental obliquity.
Toby v. Leonards, 2 Wall. 423; 9 R.C.L. 435, Sec. 238.
It is a great wrong to them, not only as it touches them in their natural affections, but also as it tends to destroy their purity of mind and conduct. Moreover, the evidence of such children to acts, which will naturally be construed by their prepossessions and immature and incorrect notions, is of very slight value, even when honestly called out and given, and is easily shaped and perverted if a dishonest father shall be so inclined.
Crowner v. Crowner, 44 Mich. 180; Kneale v. Kneale, 28 Mich. 344.
With reference to the other assignment of error as to the desire of both parties for illicit relationship and opportunity to have illicit relationship, all we desire to say in answer to opposing counsel's argument is simply that the appellee and her witness deny any wrongdoing on her part. This of course, became a question of fact. The chancellor decided this fact in favor of appellee. We take it that it is unnecessary to cite authorities and that this court will not overrule a chancellor's finding of fact where there is testimony in the record to support same.
This appeal is from a decree which denied the husband a divorce from his wife on a charge of adultery. The appellant assigns two grounds for a reversal of the case: (1) that the trial court was in error in holding that the proof was insufficient to sustain the charge; and (2) that it was error not to permit their son, who was more than fifteen and one-half years of age, to testify as a witness on behalf of the appellant in regard to certain facts and circumstances strongly tending to establish the charge complained of, when taken and considered in connection with the other testimony.
In view of our conclusion to reverse and remand the cause for a new trial because of the second ground of error assigned, we refrain from commenting as to the weight of the evidence actually introduced. It is sufficient to say that the rule against permitting children of tender years to testify in a divorce proceeding between their parents has no application to a child as far advanced in years as the witness here involved, and especially where the child is able to properly evaluate the facts which have come to his personal knowledge and foresee the impending danger to the marital status to such an extent that he has felt constrained to intercede with the offending parent before the other has even suspected any wrongdoing.
Under our law, a minor fourteen years of age is permitted to select his own guardian, and he is held accountable for crime at that age, without the state being required to affirmatively prove his capacity in that behalf. Nor can it be successfully maintained in these days that a boy nearly sixteen years of age is unable to draw correct inferences from the facts and circumstances coming under his own observation when they are suggestive of immoral conduct. And, even so, the trier of the facts may draw his own conclusions as to the weight and worth of the circumstances testified to by the witness, the same as if they were related to him by an adult. In the instant case, there is no question of public policy involved that would not likewise render it unwise for the court to have heard the testimony of the other son, twenty-one years of age, who was admittedly competent as a witness.
Reversed and remanded.