Merritt Lane, of Newark, and Henry Runyon and William Huck, Jr., both of Jersey City, for petitioner. Alexander Simpson, of Jersey City, for defendant.
Suit for divorce by Donald J. Sargent against Frances L. Sargent. Decree for defendant.
Decree affirmed, 114 Atl. 439.
Merritt Lane, of Newark, and Henry Runyon and William Huck, Jr., both of Jersey City, for petitioner.
Alexander Simpson, of Jersey City, for defendant.
FIELDER, Adv. M. The petition, filed August 2, 1919, charges defendant with having committed adultery (a) on various days in the month of November, 1917, with an unknown man at petitioner's home on Kensington avenue, Jersey City; (b) at times and places unknown, with a man or men unknown, as a result of which she contracted gonorrhea; (c) from September, 1918, to July, 1919, the exact dates not being known to petitioner, at petitioner's said home and at Port Richmond, Staten Island, and in petitioner's automobile and at other places unknown, all with Charles Simmons; (d) on July 11, 1919, at petitioner's said home, with Charles Simmons. The answer, filed September 3, 1919, denies the charges of adultery, and alleges that petitioner communicated the venereal disease to defendant, and that he conspired with detectives and servants to falsely accuse defendant of adultery with Simmons, and that petitioner solicited Simmons to commit adultery with her, and afforded him opportunities to do so. On the hearing, no proof was offered to show adultery with any man other than Simmons, and with him the petitioner endeavored to show that defendant committed three specific acts, the first at Jeffersonville, N. T., on or about October 14, 1918; the second at petitioner's Kensington avenue home, on or about May 1, 1919; and the third at the same place on July 11, 1919.
Before referring to the voluminous testimony tending to prove these acts, the social status of the parties concerned must be considered. Simmons, the alleged paramour, is a negro chauffeur, employed by the petitioner from July, 1918, to July 11, 1919, to drive an automobile used by petitioner and his wife. He is a coffee colored negro, showing the characteristics of his race, save that his hair is straight; about 30 years old; about six feet tall, and of slender build; intelligent, but speaking ungrammatically, and I Would say of not a prepossessing appearance. As to his appearance, the three negro women who testified for petitioner said that they did not consider him good looking, one of them describing him as a "gawky Indian." He was married, and from about the same month in 1918 to April 5. 1919, his wife was employed in the Sargent household as a domestic servant. Simmons and his wife lived in the Sargent home from July, 1918, to April 5, 1919. Mr. Sargent appears to be about 40 years old, and Mrs. Sargent a few years younger. They were married September 22, 1909, and for 3 years prior to July 11, 1919, had resided in their home on Kensington avenue, in a fashionable part of Jersey City. He has the appearance, manner, and bearing of a man of education and culture. That he is a man of some wealth is apparent from the fact that he is paying his wife $300 a month alimony pendente lite. He had been master of a Masonic Lodge in his city and a member of several social clubs, whose functions he attended with Mrs. Sargent. He and his wife moved in good social circles and entertained and were entertained by people prominent in social, religious, and financial life. She appears to be a woman of modest demeanor and of refinement and education, and she possesses beauty of face and form. She was a member of various women's organizations, of a Browning society, of musical clubs, and she was a church attendant. There is no evidence whatever to indicate that outside of heir home, while in company of men or women of her social circle, or in the company of the corespondent, she misconducted herself in any way, or was guilty of any act of impropriety, indiscretion, or even frivolity. Nor is there any evidence to show any act in her home which might subject her to suspicion or criticism, other than with this negro chauffeur. All the evidence as to her conduct and acts, except as to the Jeffersonville occurrence, relates to what happened in her home, and it is upon such evidence I must rely to adjudge her guilty of all or any of the three acts of adultery mentioned.
The thought of this cultured, refined, and modest appearing white woman in sexual relation with any negro is revolting to the senses. The acts and conduct with which she is charged by witnesses for petitioner are peculiarly contrary to the universal teachings and practice of the white society to which she belonged, which is absolutely opposed to any business or social alliance between the races and association of the nature charged against her with a blackman, is repugnant to white women of her social standing, is unnatural, and rarely found to exist. So objectionable is it to the white race that in many states of our Union marriage between the races is prohibited. To convince me that defendant has departed from the traditions of her race and has fallen so low in the human scale and has been so grossly immoral as to place herself among the most debased of womankind the evidence must be so convincing and compelling as to leave no doubt whatever existing in my mind as to her guilt.
Our courts have said that the burden of proof is upon him who asserts the adultery, and that burden must be clearly sustained. To establish adultery the circumstances must be such as to lead the guarded discretion of a reasonable and just mind to the conclusion of guilt. The judgment must not be rash and intemperate, moving upon appearances that are equally capable of two interpretations. If the circumstances, taken both singly and tqgether, admit of two interpretations, that interpretation which favors innocence should be adopted (Rerckmans v. Berclcmans, 17 N. J. Eq. 453: Culver v. Culver, 38 N. J. Eq. 163; Hurtzig v. Hurtzig, 44 N. J. Eq. 329, 15 Atl. 537; Luderitz v. Luderitz, 88 N. J. Eq. 103, 102 Atl. 661), and this rule our courts have followed in determining the evidence insufficient to establish adultery in many cases. Osborn v. Osborn, 44 N. J. Eq. 257, 9 Atl. 698, 10 Atl. 107, 14 Atl. 217; Brown v. Brown, 63 N. J. Eq. 348, 50 Atl. 608; Farrow v. Farrow, 70 N. J. Eq. 777, 60 Atl. 1103; Letts v. Letts, 79 N. J. Eq. 630, 82 Atl. 845, Ann. Cas. 1913A, 1236; Earl v. Earl, 81 N. J. Eq. 444, 86 Atl. 940; Cooper v. Cooper, 82 N. J. Eq. 581, 91 Atl. 731; Id., 82 N. J. Eq. 060, 91 Atl. 732; McKonna v. McKenna, 84 N. J. Eq. 190, 96 Atl. 890.
All the direct evidence to prove acts of familiarity to indicate illicit inclination, to prove opportunity and to prove adultery, comes from the lips of two white detectives and four negroes. The detectives were employed by petitioner after he says he was informed of his wife's relations with Simmons by one of the four negroes, and the four negroes were employed as house servants in and about the Sargent home, one of them being a detective placed therein to spy on the wife. All these negroes save one, and including the negro woman detective, are still in the petitioner's pay.
I shall first consider the testimony tending to show inclination and opportunity.
Ida Lewis, a negress, testified that she was employed at general housework in the Sargent home from some time in 1918, and still works there for the petitioner; that previous to 1918 she had been in Mrs. Sargent's employ, but had been discharged for stealing some trunks filled with linen and had been taken back; that Mrs. Sargent told her she thought it perfectly proper for whites and blacks to intermarry if they loved each other, and that witness disagreed with her, and Mrs. Sargent argued in favor of mixing the races, while witness argued against it; that Mrs. Sargent told witness she thought Simmons handsome; that witness heard Simmons curse and swear at Mrs. Sargent, who said she was afraid to tell her husband about it; that Mrs. Sargent showed witness a photograph (of a white man), and said it was the picture or her lover or sweetheart, and said she did not love her husband; that witness stood in the doorway of Mrs. Sargenf s bedroom, saw Mrs. Sargent in bed in her nightdress, with her bare feet sticking out from under the covers, and Simmons standing at the foot of the bed, and when he saw witness he ran into a closet, and neither Mrs. Sargent nor the witness said anything to each other; that on another occasion witness saw Simmons in Mrs. Sargent's bedroom and Mrs. Sargent was dressed only in her underwear, corsets, shoes, and stockings, and when witness came to the open door, Simmons ran out past witness, and no one said a word.
Charlotte Lunford, an uneducated negress, who does not know her age, testified that she was employed at general housework and as cook in the Sargent home from some time in 1916 until, as she says, Mrs. Sargent drove her out of the house shortly after July, 1918, when Simmons and his wife came there to work, and she returned again in about three months, and still works there for the petitioner; that Mrs. Sargent did not like her, and witness did not like Simmons, or Simmons' wife, or Mrs. Sargent's treatment of Simmons and his wife, because witness had to wait on them; that a month after Simmons was employed she observed acts of intimacy (although Mrs. Simmons was then living at the house); that two months after Simmons was employed she saw them drinking together in Mrs. Sargent's bedroom several times, and witness was sent by Mrs. Sargent for glasses and cracked ice (presumably to the kitchen, where Mrs. Simmons was working), and witness drank wine and whisky with Simmons and Mrs. Sargent in the latter's bedroom; that Simmons went to Mrs. Sargent's room every day and sometimes three times a day, and witness saw Simmons in that room lots of times, drinking wine, and several times when Mrs. Sargent was in her nightdress with a robe over it, or was in bed; that Mrs. Sargent told witness she thought Simmons nice and handsome; that witness once heard Mrs. Sargent call Simmons "Sweetheart" and "Dearie" over the telephone, and she once saw Simmons hug Mrs. Sargent, in the second story hall, after Simmons had walked past witness in first story hall to go upstairs to Mrs. Sargent. Viola Jones, a negress, testified that shewas employed at the Sargent home as a nurse for the Sargent's adopted baby, from the first Monday in June, 1919, and still works there for the petitioner; that she was a detective in the employ of the detective agency petitioner had engaged, and was "planted" in the house, and had done detective work in three other divorce suits; that it was Mrs. Sargent's custom to breakfast in bed; that once Mrs. Sargent told witness she wanted to see Simmons, as she intended going out, and Simmons came to the bedroom and stayed there five minutes, and in the presence of witness got a drink of whisky, and invited Mrs. Sargent to have a drink, too, and that Mrs. Sargent declined the whisky, but said she would have wine, and Simmons got her a bottle of wine; that Mrs. Sargent asked witness if she did not think Simmons handsome; that Simmons took a bath on the attic floor where witness' bedroom was located, and after taking the bath put on a suit of Sargent's underwear and asked witness for powder, which witness got and took to the open bathroom door and handed to Simmons while he was in his undershirt and was putting on his drawers: that in addition to a telephone extension in the attic there was a "dictaphone" (dictagraph?) in her room, placed there by the detectives, over which she and the detectives could hear everything that happened all over the house; that over the telephone extension she heard three conversations between Mrs. Sargent and Simmons, once she asked him to come to get something to eat, another time she told him she could not talk to him because the servants were listening, and in the third conversation she asked Simmons to come to the house, and be inquired if Mr. Sargent was there, and she replied, "No," and Simmons came later.
Mack Jetter, a negro, testified: That he was employed by petitioner in 1918 and until the spring of 1919, cutting grass and removing garbage at the Sargent home, but is not now in petitioner's employ. That on an occasion when he was engaged in washing windows in the second story of the house, between 9 and 10 o'clock in the morning, Mrs. Sargent, from her bedroom, called Simmons, who was downstairs, to come up, and Simmons came up the back stairs and walked into the room. That when Simmons went in witness was 10 feet away, and then moved up to within 5 feet of the door, and heard Simmons say to Mrs. Sargent: "What do you want me for?" and her reply: "You know what I want. Why didn't you come before?" That the bedroom door was open sufficiently wide for witness to see that Mrs. Sargent was lying in bed with her arm outstretched, and that Simmons took her hand, and that she pulled him to her, and witness then walked away. That he never told this story to any one up to the day he testified. In the first part of his testimony he fixed the date of this occurrence as the spring of 1919, and later on he said it was the latter part of October or the first of November, 1918.
August S. Tienken, a detective employed by petitioner's solicitors about the middle of May, 1919, was secreted in an attic room in the house, with the knowledge of all the servants, on eight or ten occasions from May 22 to July 11, two of such occasions being when the solicitors had informed him that Sargent would be away from home all night, and on one occasion he remained in the attic room three consecutive days and nights. He had run an extension line from the house telephone to his attic room, and he listened in on telephone conversations. A signal wire had been run, under his direction, along the attic stairs from a push button placed at the bottom of those stairs at the second floor, to the attic room he occupied, and at his end there was a buzzer or flash. He had given Charlotte instructions to press the button whenever she caught Simmons and Mrs. Sargent in her bedroom under compromising conditions. He testified that the automobile went out a great deal, and in June and July he had it trailed when Simmons and Mrs. Sargent were in it; that while in his attic room he heard mumbling sounds of conversation between Mrs. Sargent and Simmons in her 'room five or six times, continuing from 25 to 40 minutes; that on one occasion he heard them talking and laughing in her bedroom as late as 9:30 p. m. for 25 minutes; that he could distinguish nothing that was said; that over the telephone extension he heard Mrs. Sargent call Simmons "Dearie"; that when he commenced operations May 22, he talked with Charlotte, gave her instructions, and found her faithful to him; that he has no record of the dates be was in the house, or of the dates he heard the talks in Mrs. Sargent's room, or of the dates he listened to telephone conversations.
Albert W. Wilsdon, a detective associated with Tienken, commenced work on the case May 26, and installed signal wires and the telephone extension. He stayed in the attic room on four occasions, twice over night and the other two times for but a few hours. He testified that he heard the mumbling voices of a man and woman in Mrs. Sargent's room twice, once in the morning and once in the evening; that he followed the automobile on various occasions when Mrs. Sargent and Simmons were in it, riding a bicycle or motorcycle. He could not give dates for any of the occasions to which he testified, further than to say they all occurred during the period from May 26 to July 11.
Mrs. Sargent and Simmons positively deny all these alleged occurrences.
I think this case a striking example ofthe reason for the rule that, while the testimony of detectives, paid spies and household servants is competent, it should be scrutinized carefully, and should not be relied on unless it is corroborated. Cane v. Cane, 39 N. J. Eq. 148-150; Hurtzig v. Hurtzig, 44 N. J. Eq. 329-334, 15 Atl. 537; McGrail v. McGrail, 48 N. J. Eq. 532, 22 Atl. 582, reversed 49 N. J. Eq. 348, 25 Atl. 963; Brown v. Brown, 63 N. J. Eq. 348, 50 Atl. 608; Farrow v. Farrow, 70 N. J. Eq. 777, 60 Atl. 1103; Slack v. Slack, 89 N. J. Eq. 589-594, 105 Atl. 894.
If this testimony is to be believed, it shows this woman to be a reckless, abandoned adultress, careless, to the point of indifference, in her relations with Simmons, carrying on her liaison with wide open doors, intent only on gratifying an abnormal, licentious desire, at all times of the day and night, giving no heed to the presence of her servants, who came and went about the house freely, attending to their household duties, and, indeed, making the servants her associates and confidants in her illicit affair with Simmons. The composite story is so improbable as to be unbelieveable, and because of its Incredibility and its source, I decline to accept it as true. To accept such a story would be to say that every woman in her home is at the mercy of servants who, for pay or to satisfy a grudge, might relate a tale which only their mistress and the alleged corespondent could deny.
I know it has been said that the denial of the defendant is entitled to but little weight, but I understand by that, that when the guilt is indubitably established, the defendant's denial is of little value. It would be an unfair rule that, with relation to testimony such as I have quoted, her denial under oath should be cast aside merely because she is the defendant. I think the rule is that, where there is an endeavor to establish circumstances from which it is sought to draw an inference of her guilt and her veracity is unimpeached, her testimony should be given the same weight as any other witness, except only as affected by her interest.
Let us see what the testimony I have been considering amounts to. No definite date was given for any occurrence testified to, which made refutation impossible except by a circumstantial denial. The servant witnesses, with the exception of Jetter, not only had ill feeling toward Mrs. Sargent and Simmons, but they were in petitioner's pay up to the time they testified. None of the specific instances cited by the servants, except Viola, tending to prove improper attachment between Mrs. Sargent and Simmons, appear to have occurred while the detectives were in the house, and so, for the period of over seven weeks while the detectives were there and Mrs. Sargent and Simmons were under the closest surveillance, no act transpired which the detectives thought of sufficient importance to call them from their hiding place and furnish them with the evidence they were eager to find and were there to find, although petitioner was away from his home each business day, and on at least one occasion prior to July 11 remained away from home for a night or nights, and the defendant is pictured by her servants as a woman devoured by a passion for a negro servant, which she could not control. Simmons was at the house daily, and the servant spies were on the watch to catch him with Mrs. Sargent. When they went out in the automobile they were followed by a detective, but, no evidence of what he saw having been offered, the inference, of course, is that he saw nothing wrong. I would not doubt that Simmons went occasionally to Mrs. Sargent's room, especially during the period he lived in the house. The duties of his position required that he should receive orders from her, and perhaps on some of these occasions Mrs. Sargent was not dressed in street costume., It is not strange that a servant like Simmons should have the run of the house, and it is well known that familiarity with the continuous presence of a servant in the house results in the mistress being careless of her state of dress in his presence.
It was Simmons' conduct with Mrs. Sargent, as reported to Sargent by Charlotte about May 3, 1919, which moved Sargent to place detectives in his home, so that apparently Simmons was the only man under suspicion, and he is the only man against whom testimony was directed. That being so, I cannot understand why it was thought necessary to run an extension telephone line to the attic room to listen to conversations with a man whose duties called him to the house daily, and to whom, therefore, there would be little to say over a telephone, especially of an incriminating nature. The two detectives testified prior to Viola. They spoke of but two mechanical devices Installed to aid in their work, namely, the extension telephone line and the signal wire, and they made no mention of a dictagraph, but Viola told of a "dictaphone," which she described as an instrument, with a receiver in the attic, by means of which she could hear all over the house, and over which she could hear everything. Because of her testimony, and also because I cannot see the necessity for an extension telephone line, I am led to believe that the extension telephone was in reality a dictagraph, an instrument with which the detectives, in the nature of their business, must have been familiar and would be likely to use. In any event, according to Viola, the dictagraph was there, and as the detectives failed to mention it, the inference is that they deliberately endeavored to suppress the fact of its existence, because they heard nothing over it which would incriminate Mrs. Sargent. The one spot in the house where they surely would place the transmitting endof this instrument was Mrs. Sagent's bedroom, and if Simmons was in that room on the many occasions and for the length of time the detectives say he was, they would not have had to testify to "mumblings" from the room, but would have had actual conversations to report.
Another circumstance which indicates the improbability of the testimony as to undue familiarity and sexual intimacy between the persons in question is the fact that during practically the whole period covered by the witnesses from whom I have quoted, Mrs. Sargent was suffering from gonorrhea and its effect upon her system. October 1, 1918, Sargent went to a physician, and for six or eight months thereafter he was under treatment for that venereal disease. A few days after October 1 he told his wife he feared he had the disease, and that he thought it a recurrence of an attack he had had 12 years prior, before marriage, and October 9 he took her to his physician, who told her she had the disease too. From about the middle of October to early in January, 1919, Mrs. Sargent was sick in bed as the result of the disease, and from January to July she suffered from inflammatory rheumatism as an after result, and was under the doctor's care and preparing for an operation, which was performed September 3, 1919. I pause here to say that I cannot determine from the evidence whether the petitioner or the defendant had gonorrhea first. I observe, however, that he was the one first spoke of having it; that she apparently was not aware she had it until he took her to his physician; that he was the first to seek treatment; that one of his medical witnesses testified that it was not possible to have a recurrence of the disease from an old attack 12 years after the old attack had been cured, and that if the petitioner was sure he had not contracted it from a woman other than his wife, it impresses me as strange that he did not employ his detectives in October, 1918. It does not seem likely that during this period of her illness and suffering, Mrs. Sargent would have indulged continuously in intercourse with Simmons, and I note here that the act of familiarity covered by Jetter's testimony, and which, if true, would indicate that adultery was about to be committed, occurred according to the date he last fixed, at a time when she was sick in bed. I conclude this comment on the evidence concerning inclination, desire, and opportunity with reference to the fact that as to the telephone conversation testified to by Charlotte, wherein that witness said she heard Mrs. Sargent call Simmons "Dearie" or "Sweetheart," Charlotte was proved to have told a falsehood. This was the only instance covered by her testimony to which a date was attached, and defeudant was able to call three reputable and disinterested ladies to testify that on the occasion fixed by Charlotte, the telephone conversation did not occur.
I shall now take up the three specific acts of adultery which petitioner's counsel contends have been proved. The first is alleged to have occurred at Jeffersonville, N. Y., but is not set out in the petition. The petitioner therefore could not have learned of it until after his petition was filed, and he apparently did not think his evidence sufficiently strong to amend his petition and set it up. The testimony with reference to it was given without objection from defendant's counsel. It appears that Mrs. Sargent and her sister, Mrs. Kuchman, went by automobile from Jersey City to visit a sick friend, who was dying in a sanitarium at or near Jeffersonville. The trip was planned by petitioner, and Simmons drove the automobile. The party spent the night of October 14, 1918, at a hotel in Jeffersonville, and Mrs. Sargent and Mrs. Kuchman were assigned a room together, and Simmons was assigned a room nearly opposite, across a hall. The proof of the alleged adultery depends entirely upon the testimony of Mrs. Elizabeth L. Lathrop, a resident of New York City, who refused to come to this state to testify; her evidence having been given before a master in New York City. She had known the Sargents 5 years, had visited their home and they had visited hers, and she called herself Mrs. Sargent's friend. She also knows Simmons. She testified that before the trip to Jeffersonville Mrs. Sargent told her that Simmons had a great physical attraction for her, and she for him, and that she "was going to have him"; that on this occasion Mrs. Sargent had come to witness' home in her automobile with Simmons driving, and that Mrs. Sargent told witness she (Mrs. Sargent) had told Simmons she was going to tell witness of their attraction for each other; that Mrs. Sargent wanted witness to go with her on the automobile trip to Jeffersonville as chaperon, because she (Mrs. Sargent) "intended to stay with him" (Simmons); that witness told Mrs. Sargent she was crazy, and Mrs. Sargent said she realized it, but could not help it because she felt that way toward Simmons; that witness refused to go under such conditions; that because of this statement by Mrs. Sargent, witness then wrote Mrs. Sargent a letter, stating that she would probably never see Sirs. Sargent again; that subsequently Mrs. Sargent told her that she had taken the trip in question, but never told her about staying with Simmons at Jeffersonville; that in the spring of 1919 witness had painted some china for Mrs. Sargent, and Simmons came to get it, and told witness that on the occasion of the trip to Jeffersonville Mrs. Sargent had stayed all night with him at the hotel, and that she had tried to get connecting rooms, but could not, and that Mrs. Sargent was in his room, and that Mrs. Kuchman, who was onthe trip with them, made no objection to Mrs. Sargent staying in his room; that in or about May, 1919, Simmons told her Mrs. Sargent was about to discharge him, and he asked witness to find him a place, which witness did, but Simmons would not take it; that witness then sent for Mrs. Sargent, who came to witness' home in her car with Simmons, when Mrs. Sargent told witness that Simmons wanted to leave her employ, and Mrs. Sargent said she was glad to have him go, and hoped he would, but witness said nothing to Mrs. Sargent about what Simmons had told her of the Jeffersonville trip; that after the raid she met Mrs. Sargent, when Mrs. Sargent told her about the raid, and that Simmons had been shoved into her room and the door locked on the outside; that witness went on a two or three-day automobile trip to Massachusetts July 4, 1919, with Mr. and Mrs. Sargent (Simmons drove the car on this occasion); that witness had been with Mrs. Sargent and Simmons in the automobile on several occasions, and the only act of familiarity she saw was that "more than once she (Mrs. Sargent) cast a glance at him, a significant look, just as one might recognize any one," which the witness would not have remarked except for what Mrs. Sargent had told her about Simmons.
Mrs. Lathrop's testimony is uncorroborated, and is denied by Mrs. Sargent and Simmons. It amounts to this: That Mrs. Sargent told her she intended to defile herself on this trip to Jeffersonville by committing adultery with a negro and she wanted Mrs. Lathrop to debase herself and to become a particeps criminis by accompanying her, and that Simmons afterwards told her the adultery had been committed (which means that Mrs. Kuchman was a party to it), but that Mrs. Sargent made no such admission. This uncorroborated story cannot be accepted as proof of adultery, because the fact of the actual commission of the act depends on what Simmons told the witness, and Simmons' statement cannot be received as evidence against Mrs. Sargent. Graham v. Graham, 50 N. J. Eq. 701, 25 Atl. 358; Kloman v. Kloman, 62 N. J. Eq. 153, 49 Atl. 810; Howard v. Howard, 77 N. J. Eq. 186, 78 Atl. 195. At the most, it goes to affect his credibility in his denial. But this story is so improbable I am loath to accept it. It is contrary to human experience that the defendant should confide to another her intention to commit adultery, and especially an act of so revolting a nature, and it is also contrary to human experience that if such confidence were given Mrs. Lathrop would not in disgust promptly terminate her friendship with so degraded a woman. But we find Mrs. Lathrop continuing her intimacy with Mrs. Sargent, even after Simmons told her the act had been committed.
In addition to Mrs. Sargent's denial of adultery at this time and place, there are the supporting facts that a few days before this trip Mrs. Sargent had discovered she had gonorrhea, and that she had undergone an operation for the removal of a polypoid growth at the neck of her womb, and her condition while at Jeffersonville was such that she had to secure the service of a physician, so that she could scarcely have been in a condition to indulge in a night of sexual intercourse. In further corroboration of Mrs. Sargent's denial is the testimony of Mrs. Kuchman that she and her sister occupied the same room together the whole night, and that Mrs. Sargent did not commit adultery with Simmons. I consider this charge fully disproved.
The second act of adultery alleged depends wholly on a story told by Charlotte Lunford. She did not fix the date of the incident to which she testified, but it seems to have been about May 1, 1919. She testified that Mrs. Sargent and Simmons came home about 9 p. m. and went to Mrs. Sargent's bedroom, the witness accompanying them; that Simmons brought a bottle of wine and a bottle of whisky to the room, and witness made some sandwiches, and the three sat in the bedroom eating and drinking; that in opening the bottle, some wine was spilled on the wall, furniture, and floor; that some time during the evening Mrs. Sargent removed her clothing, and, wearing nothing but a night gown, robe, and slippers, lay on the floor; that Simmons removed his coat and leggings, and lay "like a dog" on the floor beside Mrs. Sargent; that witness asked Simmons whether he was not going upstairs to the servants' quarters to sleep, and he replied, "No, I am going to sleep here;" that witness then went upstairs, leaving Mrs. Sargent and Simmons in separate rooms on the bedroom floor, and when she came down at 6 o'clock the following morning, they were still in the separate rooms, each in bed; that witness went back to her own room and slept until 8 o'clock, when Mrs. Sargent called her, and then Simmons came up to the servants' bathroom, washed his face and hands, and went out. Mrs. Sargent denies this story as related by Charlotte, but says there was an occasion when wine was spilled in the room in question. She says that when she left home that morning to attend a function in New York she told Charlotte to place a bottle of wine on ice because she expected to bring a friend to spend the night; that she returned about 11 p. m., but the friend did not come with her; that Charlotte told her she had not put the wine on ice, but she directed Charlotte to bring it to her room, and when Charlotte opened the bottle the contents spurted on the wall; that she told petitioner about it the next day; that Simmons did not enter the house that night. Simmons also denies the incident. The impression Charlotte's story makes on my mind is that it is incredible. I cannot believe that this white woman wouldentertain two negroes in her bedroom, and while almost naked perform the antics testified to with Simmons, and commit adultery practically in the presence of Charlotte. Bearing in mind, too, that Charlotte allied herself with the detectives for the purpose of furnishing evidence to the petitioner, and was and still is in the pay of the petitioner, I refuse to accept her uncorroborated story as true as against defendant's denial.
The third act of adultery is alleged to have occurred on the night of July 11, 1919. This is the night on which the so-called "raid" took place, and the proof depends on the testimony of Charlotte, Tienken, and Wilsdon, denied or explained by Mrs. Sargent and Simmons. The story told by the two detectives is that they were concealed in the attic room that night; that they had arranged the signals with Charlotte, and saw her on and off during the evening; that at 9:15 Simmons came up to the attic, tried the doors, including theirs, and went downstairs to the bedroom floor; that they heard continued mumbling voices coming from Mrs. Sargent's room; that at 9:50 they were outside their room, looking down the attic stairs and saw Mrs. Sargent, in her nightdress and pink robe, walk past the toot of the attic stairs, and that Simmons was behind her, and they heard her say: "Stop, Charles;" that she went to the bathroom, remained there five minutes, and returned to her room, from which direction they continued to hear voices; that at 10:40 they were on the way down the attic stairs, and saw Charlotte pressing the button at the end of the signal wire, and beard some one cry, "Charlotte, Charlotte;" that they rushed down the stairs to Mrs. Sargent's room, found the door fastened, and Tienken locked the door on the outside with a key he carried; that they heard some one open a window inside the room, and Tienken ran d>wn one flight of stairs to the front door, which he was delayed in opening by a chain bolt thereon, and when he finally got out he saw Simmons running down the street 500 feet away; that Tienken then looked up at the window in Mrs. Sargent's room, and saw her standing there in her nightdress and pink robe; that when Tienken found Mrs. Sargent's room door fastened, Wilsdon ran to a window, from which he saw Simmons jump from a window in Mrs. Sargent's room and run away, and he also saw Mrs. Snrnent in her nightdress and pink robe: that they then telephoned Mr. Huck, petitioner's solicitor of record, who arrived at the Sargent home in about 15 minutes.
I now pass to the version given by Mrs. Sargent and Simmons as to what happened preceding Simmons' hasty exit from the room. She had been out in her automobile with her sister and niece, and on the way home had purchased a quantity of groceries and vegetables, which made a number of parcels, arriving home at 8:20. She went to her room, removed her hat and coat, and came down to the kitchen, where Charlotte was. Simmons made a couple of trips to and from the automobile, bringing in the parcels, which Charlotte asked him to help her unwrap and put away the wrappings. Charlotte told him she had been sick all day and had been sleeping, and asked him to sit awhile with her, which he consented to do. Charlotte then prepared something for Mrs. Sargent and him to eat; Mrs. Sargent having her meal in the dining room and Simmons his in the kitchen. Mrs. Sargent was uneasy because Mr. Sargent was to be away all night, and said she felt that some one was in the house, and she told Simmons to try all the doors and windows before he left, and to get some whisky to give Charlotte for her illness. He took the car to the garage, and was back again about 9 o'clock, and helped Charlotte with the parcels, spent some time with her in the kitchen, got a bottle of whisky, which he gave to Charlotte, and then proceeded to examine all the doors and windows from cellar to attic, and when he came down from the attic, Charlotte was standing in Mrs. Sargent's bedroom door, and he stopped to report to Mrs. Sargent that everything was all right in the house. Mrs. Sargent was sitting in her room fully dressed, sewing. Charlotte, with a small glass of whisky in her hand, stepped into Mrs. Sargent's room, placed the glass on a dresser, and asked Simmons if he would like to have a drink, and, upon Simmons replying that he would she said: "There it is; get it;" and upon Simmons stepping in the room, Charlotte stepped out and closed the door. Mrs. Sargent called, "Charlotte, Charlotte, what are you doing?" and Charlotte opened the door and said, "I was only funning." Mrs. Sargent said, "How dare you do such a thing?" and Charlotte pulled the door to again and the lock clicked. There was no lock or bolt of any kind on the inside of the door (no witness except petitioner testified that there was), and neither Mrs. Sargent nor Simmons fastened the door. Then came the sound of running feet to the door, and Simmons said the noise sounded to him like horses, and he heard knocking on the door, and his name was called; that a thousand thoughts were in his mind, and he did not know whether there were robbers in the house or somebody was going to be killed; that he knew he was locked in a room where he had no right to be, and he followed his impulse and jumped from the window.
Charlotte was a witness called by petitioner. Although she was friendly to petitioner and an observer of and actor in all the events which transpired the night of July 11, before, at, and after the raid, she was not asked on her direct examination to tell of that night, and her story was first brought out on cross-examination. She swore that she knew the petitioner was to be away that night,and that when the detectives came to the house that morning they told her there would be a raid that night; that Mrs. Sargent and Simmons ate their meal in the kitchen, and had wine and whisky to drink; that Simmons washed the dishes, and the three went up to Mrs. Sargent's room, sat there and talked and drank; that Mrs. Sargent said she felt as though some one was in the house, and Simmons went out and examined the house; that after Simmons came back he said he was going to have a good time, and Charlotte went upstairs, where she remained 20 minutes (with the detectives), and Mrs. Sargent called her, and she came down, and the detectives came, too; that she went to Mrs. Sargent's room, where Mrs. Sargent was in her nightdress and Simmons was sitting on the foot of the bed; that she left the room and remained in the hall, and 15 minutes afterwards she saw the detectives in the hall at the room door; that the bedroom door was open, and she closed it, and, after closing it, opened it again halfway; that the detectives were then a yard away, and one of them closed the door for the second time and locked it; that she closed the door for the first time because she was "funning" with Mrs. Sargent and Simmons.
We have sharply contradictory statements of the events on the night in question, and the problem is to find where the truth lies. The story told by Mrs. Sargent and Simmons is probable. The circumstances surrounding the raid may have been exactly as they describe, while discrepancies are apparent between the story told by the detectives and that told by Charlotte, and there are improbabilities in the stories told by the detectives and Charlotte. The striking difference between the detectives and Charlotte is that the detectives say the bedroom door was closed and fastened when they came downstairs, while Charlotte says it was halfway open, and that the detectives stood by it several minutes, and one of them closed and locked it on the outside. If the door was open, as Mrs. Sargent, Simmons, and Charlotte say it was, and it was true that Mrs. Sargent and Simmons had been in the room from 9:15 to 10:40, and Charlotte had seen Mrs. Sargent in the room undressed, why did the detectives not walk in through the open door? The only answer seems to be that the detectives' statement was not true; that their hope of obtaining real evidence that night had not been realized, and they proceeded to manufacture it by locking the door. If Charlotte went upstairs after leaving Mrs. Sargent and Simmons in the room, she must have seen the detectives, and must have told them that their evidence was at hand, but they did not come down. Twenty minutes later Charlotte says Mrs. Sargent called her, and she went down. If Charlotte heard the call, so did the detectives, and they could have come down with Charlotte. Charlotte says they actually did come down with her. The bedroom door was then open, and Charlotte walked in. Mrs. Sargent was in bed, and Simmons was sitting on it. Charlotte walked out, leaving the door open, and the detectives were in the hall. Why did she not tell them to walk in? Their evidence was at hand. Again, they saw Mrs. Sargent pass the foot of the attic stairs in her nightdress, and knew from what she said that Simmons was in the hall with her; they saw her go to the bathroom, where she remained five minutes. Their evidence was again at hand, and they could have caught her undressed, and Simmons probably in similar attire. If their story is true, it is incomprehensible why they waited from 9:15 to 10:40 to come downstairs, and, when they linally did come, why they locked the evidence in the room where they could not see it, instead of breaking down the door. Detectives are usually not so delicate that they hesitate at using force, and Tienken held a letter dated June 19, 1919, signed by petitioner, covering just such an emergency, for by it petitioner notified "all whom it might concern" that Tienken and Mr. Huck, or either of them, were authorized to act for petitioner in and about his residence as though he were personally present. It may be argued that they thought they had the evidence secure in the room, and that they wanted Mr. Huck to see it. They must have known that in the time which would elapse before Mr. Huck could arrive, the man and the woman could clothe themselves, arrange the bed, and dispose of all outward appearance of guilt, and also concoct some explanation of their presence together. But the detectives knew immediately that part of their evidence had gone out of the window (and it should be noted that Simmons went at once and must have been fully clad for it does not appear that any of his clothing remained in the room) and both detectives saw Mrs. Sargent at her window undressed. What could have been the reason for keeping her in her room alone, and why not then break down the door, catch her in disarray, with whatever evidence of guilt there might be in the room, and confront her with a charge of adultery before she had time to collect her senses? There were three witnesses then present, and her state of dress, if what they say is true, could not be explained away. My conclusion is that these men, with Viola and Charlotte, had been seeking evidence for seven weeks and had not found it; that their employer had become impatient, and had absented himself from home on this night for the express purpose of providing the opportunity for an act of adultery, and Mr. Huck, according to his testimony, expected to be called this night; that Charlotte, who seems to have supplanted Viola as a detective, and whose tale of acts of impropriety by Mrs. Sargent had resulted in the employment of the detectives,and the detectives had to "make good," and that when they found that Mrs. Sargent and Simmons were not misconducting themselves, they adopted the expedient of locking them in a room, using the key which Tienken had been carrying for weeks for that very purpose. I am not willing to accept the doubtful story of paid spies, with its discrepancies and improbabilities, as evidence of adultery between this white woman and this negro.
What happened when Mr. Huck came? Tienken unlocked the door and Huck, Tienken, and Wilsdon entered the room. Mrs: Sargent was fully dressed, except that Mr. Huck says her shoes were unlaced or unbuttoned, which she denies, and I do not consider it important whether they were or not. She had been alone in the room 15 minutes or more, and she must have known that she was under suspicion for having committed a crime with a negro, and, whether she was innocent or guilty, she must have been disturbed and excited when she faced Mr. Huck. I can believe that Mr. Huck himself was not calm and collected when under these trying conditions he confronted this woman whom he had known socially. He said she was not in her usual calm frame, but that she was neither hysterical nor agitated. She said she was like a crazy girl, and Tienken testified she carried on awfully. She said that she immediately said to Mr. Huck: "You of all men, how could you do such a thing? Where will I go? What shall I do? I have done no wrong. Why have you done this thing?" And Tienken said to her, "It's a fine thing to have a nigger in your room," and she said: "I want that man (Tienken) put out of my house," and told Mr. Huck she wanted to talk with him alone. Petitioner's counsel argued that the conversation which followed indicates her guilt because she did not specifically assert her innocence. Mr. Huck and Mrs. Sargent have not the same recollection of that conversation, but I think it sufficient to say that Mr. Huck did not charge her with adultery, nor ask her to explain Simmons' presence in her room, and that there is nothing in what he testified she said, which can be construed as an admission of guilt. Tienken testified that prior to her private conversation with Mr. Huck she was protesting her innocence and saying she had done no wrong. She seems to me to have been an overwrought woman, not knowing what she was saying, and mainly concerned with what was to be done with her.
Petitioner's counsel argued that Mrs. Sargent's subsequent conduct, taken in connection with all the evidence against her, indicates guilt. He referred to the fact that about a month after the raid she employed Simmons' wife as a domestic in her household. This suit had then been commenced. She was unstrung and ill, and was about to undergo an operation, and was without domestic help, and she may have turned to Mrs. Simmons at a time when, as everyone knows, servants were difficult to secure; or it may have been that her experience with servant spies had been such that she did not know whom to trust, and she felt she would be safer with the corespondent's wife than with any one else. But whatever her reason may have been, it cannot be construed as any evidence of guilt with Mrs. Simmons' husband.
Counsel also referred to the fact that in the latter part of the month of August, 1919, Mrs. Sargent and her sister took an automobile trip to Vermont to see her adopted child, and that Simmons drove the car. Mrs. Sargent explains this occasion by saying that her brother-in-law arranged the trip for her, sent her in his car, and that he engaged Simmons for the trip because Simmons had been to the Vermont town before and knew the road; that before allowing Simmons to drive the car she asked her counsel if it would be propper for her to go with him, and received his opinion that it would, and that she scarcely spoke to Simmons on the trip. It may not have been good judgment or good taste to permit Simmons to go with Mrs. Sargent and Mrs. Kuchman, but if Mrs. Sargent was innocent of the charges against her, the fact that she did consent to make the trip with him as chauffeur cannot militate against her, and I am unwilling to convict her of the crime charged against her because of this incident. Counsel referred to three interviews had between Mrs. Sargent and petitioner's solicitors at the latter's office, at her request, in September and October, 1919, at which Mrs. Sargent asked the solicitors and her husband to drop the suit, and he argued that because she did not at these interviews assert her innocence of the charges made in the petition then on file, such circumstance is an indication of her guilt. As to this, I think it sufficient to say that the first interview was arranged because Mrs. Sargent said she wanted to meet petitioner face to face and talk with him alone, her avowed purpose being to convince her husband that his charges were groundless. At this interview she asked her husband to talk with her alone, but he refused, and he never granted her an opportunity to tell him her version of the circumstances surrounding the raid. On this occasion her answer in this suit, which contains a complete denial of the charges made against her, was produced and read. Her attempt to make an explanation to her husband having failed, and he and his solicitors having asserted their intention of pressing the suit, the other interviews followed because she said the publicity was killing her, and, if petitioner insisted on divorcing her, she begged his solicitors to consent to her going somewhere to get the divorce which petitioner so much desired. I do not know how Mrs. Sargent at these interview's couldfurther have proclaimed her innocence than she had already done by her answer, except by a reiteration of what her answer contained, and if her husband refused to listen to the explanation she desired to give him, of what use would it have been to make it to his solicitors? Counsel also referred to alleged admissions made by Simmons of many acts of adultery with Mrs. Sargent. such admissions were testified to by two negroes, produced as witnesses on behalf of petitioner, one of whom had been employed by petitioner's solicitors for the purpose of obtaining such admissions. They are alleged to have been made after the raid, and after the local newspapers had advertised Simmons as a negro Lothario. As I have already said, referring to the alleged admission to Mrs. Lathrop, statements of this nature, if made by Simmons, are not evidence against the defendant, and can only be considered as affecting Simmons' credibility as a witness. I can disregard the whole of Simmons' testimony, and find myself unconvinced of the charges against Mrs. Sargent. I do not think, however, that his testimony should be deemed entirely worthless, but that what he said in court, under oath, should be entitled to some weight, notwithstanding that on other occasions, when proud of his notoriety, he may have boasted of his amatory prowess to two supposed friends of his own race, who may have been exciting him to flights of imagination, either through expressions of envy, or by design to induce him to commit himself. Counsel also argued that the explanation of Mrs. Sargent and Simmons as to how they spent the time on the night of the raid from 8:20 to 10:40, failed to account for the whole period. The answer is that both stated what they could recall of their movements, and did not attempt to fix the time consumed in the performance of each detail. The evidence on behalf of the petitioner as to what they did does not stand the test of probability. Simmons may very easily have consumed 2 hours and 20 minutes in the performance of the various things which he and Charlotte say he did, and, considering the testimony of all the witnesses, I am not convinced that he was in Mrs. Sargent's room any length of time before the door was closed on him.
The trial of this case consumed 4 1/2 days, and a mass of testimony was taken. In stating these reasons for my conclusion that the charges against Mrs. Sargent have not been sustained, I have relied for the facts upon such portions of the testimony as were written out during the progress of the trial, upon my trial notes and upon my memory of the testimony. I have not referred to all points made by counsel on both sides, such as the Nevada suit and the photograph incident, because I feel that the evidence to which I have not referred can be of no as sistance to me in determining the Issue, and this review of the case is now overlong.
There is, however, one further question which requires consideration. Section 28 of the Divorce Act (2 Comp. St. 1910, p. 2040) provides:
"If it appear to the court that the adultery complained of shall have been occasioned by the collusion of the parties, and done with an intention to procure a divorce, or that the complainant was consenting thereto, *** then no divorce shall be decreed."
If the first and second acts of adultery alleged have not been proved and the petitioner relies on the third act, did his conduct as to that alleged act amount to "consenting thereto"? About the 1st of May preceding the raid, Charlotte had given the petitioner her version of the occurrence on which the second act of adultery is based, and had also told him of acts of familiarity between his wife and Simmons. Petitioner, therefore, had reason to suspect her of an inclination for illicit relations with Simmons, and, suspecting, he should have taken the step which lay within his power to keep Simmons away from his home, namely, discharge him and warn him never to come to his house again. Instead, he retained Simmons in his employ. Thus he gave Simmons the chance to be with his wife frequently in the automobile and also an excuse for and opportunity to be at his house at all times during the day when petitioner was absent at his business, and petitioner purposely, on at least two occasions between May 22 and July 11, absented himself from home for a night or nights, and he did all this, if not believing that defendant would commit adultery, at least to facilitate it. He placed detectives in his home, suborned his servants, received reports from his spies as to the progress of events, and on June 19, 1919, gave one of his detectives and Mr. Huck the letter before mentioned, conferring on thein full authority to act in and about his residence, which letter the detective exhibited to Mrs. Sargent after the raid. He threw no protection around his wife. He did not even warn her against intimacy with Simmons, but he left her in danger, and did nothing whatever to withdraw her from Simmons' evil influence. For two months after he was in possession of Charlotte's information he maintained friendly intercourse with her as though nothing had occurred to shake his faith in her, treating her as "though conditions were not unusual, even taking a two-day automobile trip with her a week before the raid. Would an outraged husband, who had learned that a negro was his wife's lover, want to be in the presence of a wife who had so dishonored him, without an ulterior motive on his part? He went to Vermont July 11, leaving his wife alone in the house with the two detectives and Charlotte, who had supplantedViola as a detective and who was his spy. Charlotte nnd the detectives knew there was to be a raid that night, and Mr. Huck expected it. It is difficult to believe that petitioner did not know it too. It is also difficult to resist the conclusion that he wanted her to commit adultery. Certainly his conduct does not indicate that he did not want her to. It can be said that he was not anxious she should not, and it therefore follows that he was willing she should.
Our courts have said that it is undoubtedly true that a man may watch his wife without warning her of his intention to do so, but it is equally true that he may not actually participate in a course of action leading to her downfall. He may not, with his eyes open, do that which may in some degree conduce to it. If he sees what a reasonable man could not permit and makes no effort to avert the danger, he must be supposed to see and mean the result. Hedden v. Hedden, 21 N. J. Eq. 61; Cane v. Cane, 39 N. J. Eq. 148; Warn v. Warn, 59 N. J. Eq. 642, 45 Atl. 910; Brown v. Brown, 62 N. J. Eq. 29-65,
49 Atl. 589, reversed 63 N. J. Eq. 348-367,
50 Atl. 608; Delaney v. Delaney, 71 N. J. Eq. 246, 65 Atl. 217; White v. White, 84 N. J. Eq. 512, 95 Atl. 197. If defendant committed adultery on the night of July 11, the closing paragraph of Vice Chancellor Stevens' opinion, affirmed by the Court of Appeals, in White v. White, supra, with but slight change in the paragraph, represents my view concerning the petitioner, viz., if consent or willingness that the wife should commit adultery is a mental state and is to be inferred from conduct, it seems impossible to resist the conclusion that petitioner did desire his wife to commit the offense, and that, helping as he did to afford the opportunity which brought about the desired result, he was consenting thereto.