Opinion
[No. 29, October Term, 1939.]
Decided November 28th, 1939.
Divorce — Adultery — Evidence.
The fact that there was opportunity for the wife to commit adultery is not sufficient evidence thereof to entitle the husband to a divorce.
If the existence of a known thing, or combination of things, be established, which is consistent with the theory of commission of adultery, and inconsistent with any other theory, the evidence is adequate to justify an inference of guilt.
The testimony, on an issue of adultery, must be sufficient in weight and probative force, not only to overcome the presumption of innocence, but affirmatively and satisfactorily to satisfy, by a preponderance of testimony, the mind of the court of the commission of the crime.
The proven facts will not justify a presumption of guilt if they are reasonably consistent with innocence or cannot be reconciled with guilt.
On the issue of a wife's adultery, the court must exercise care and circumspection in the consideration of circumstantial testimony, and, keeping in mind that the burden of proof is on the accuser and not the accused, should not find that the offense has been committed unless the adultery, and not a suspicion of it, is clearly perceived.
On an issue as to a wife's adultery, imprudent conduct on her part must be judged reasonably, with due regard to the circumstances and the social station and standards of the parties.
A decree granting a divorce a mensa to the wife on the ground of cruelty held to be in accord with the weight of the evidence.
Decided November 28th, 1939.
Appeal from the Circuit Court for Somerset County, In Equity (CROCKETT, J.).
Bill by Ringgold L. Sterling against Lucy Lee Sterling for divorce on the ground of adultery, in which proceeding the defendant filed a cross-bill for a divorce on the ground of cruelty and abandonment. From a decree refusing a divorce to the husband, and granting a divorce a mensa et thoro to the wife, the husband appeals. Affirmed.
The cause was argued before BOND, C.J., OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.
F. Kirk Maddrix and L. Paul Ewell, for the appellant.
George H. Myers, for the appellee.
Unreported cases.