No. 12506-R.

April 15, 1955

FELICIDAD P. MUÑOZ, petitioner and appellant, vs. JOSE DEL BARRIO, respondent and appellee

APPEAL from a judgment of the Court of First Instance of Bulacan. Ysip, J.

Manuel Y. Macias for petitioner and appellant.

Jose del Barrio in his own behalf as respondent and appellee.

FELIX, J.:

Felicidad P. Muñoz and Jose del Barrio were married civilly before Judge Natividad Almeda Lopez of the
Municipal Court of Manila on September 24, 1942 and again canonically on October 24 of that year
before the Catholic Minister Fr. Antonio Albrecht. Since their marriage the couple lived together as
husband and wife for the ensuing six months in the house of the husband’s father at Rizal Avenue,
Manila, and then moved their residence to the municipality of Maycawayan, Bulacan. Out of this union
were born Felix Luis del Barrio and Maria Teresa del Barrio who must be actually 11 and 9 years old,
respectively.

It seems that during their married life this couple had frequent quarrels, on which occasions the
husband maltreated his wife by deed, and because the latter was unable to bear such punishment, in
1947 they unceremoniously separated, the wife staying in Meycawayan and the husband in the house of
his father at 2110 Rizal Avenue, Manila. Notwithstanding this separation of dwellings they met each
other in the City of Manila, and the wife claims that in December, 1950, or January, 1951, and in
September of the latter year she was again maltreated by her husband. This moved her to institute the
present action alleging in the petition filed on October 26, 1951, in the Court of First Instance of Bulacan,
among other things, that the system of conjugal partnership of gains governs her marriage to the
respondent; that no property has been acquired during the marriage of the petitioner and respondent
except a portion of a residential land located in Meycawayan, Bulacan, from which no rentals are
derived; that respondent has made several attempts on the life of the herein petitioner which compelled
her to live separately and apart from the respondent since 1947; and that respondent has not provided
support for petitioner and their children. Hence she prays the court:

(a) that a decree be entered for the legal separation of petitioner from respondent;
(b) that petitioner be awarded the custody of their minor children Felix del Barrio and Maria Teresa
del Barrio by herein respondent;

(c) that respondent be directed to contribute to the support of said children;

(d) that petitioner be allowed costs, plus attorney’s fees in the sum of P200 in this instance, to be
charged against the conjugal partnership property referred to in paragraph 4 above, pursuant to Article
293 of the Civil Code of the Philippines;

(e) that whatever shall remain of said conjugal partnership property after deduction of the expenses
mentioned in the next preceding paragraph, be divided and adjudicated in equal parts to herein
petitioner and respondent and the conjugal partnership dissolved and liquidated; and

(f) that petitioner be granted such further and complete relief as may be just and equitable in the
premises.

On November 12, 1951, respondent filed his answer to the petition denying the averments made in his
wife’s pleading and prayed the court that the petition be denied and dismissed for lack of merit, it being
contrary to moral and good customs and not authorized or sanctioned by statute, praying further for
such other relief as provided by law, with costs de oficio.

After the issues were joined, the court, in compliance with the provisions of Article 98 of the new Civil
Code, took every feasible step towards the reconciliation of the spouses, but His Honor failed in his
purpose by reason of the determined refusal of the wife to yield to the efforts of the Judge to that end.
Hence the case proceeded with the intervention of the office of the Provincial Fiscal of Bulacan. After
hearing the Court rendered decision the dispositive part of which, translated into English, is as follows:

“IN VIEW OF THESE CONSIDERATIONS, the Court is of the opinion and so holds that the present
complaint must be, as it is hereby, dismissed for lack of merits; without costs.”

Not satisfied with the outcome of her petition, Felicidad P. Muñoz appealed from said judgment, and in
this instance her counsel maintains that the lower court erred:

1. In not finding that respondent-appellee had made attempts on the life of petitioner-appellant;

2. In not decreeing legal separation and in dismissing petitioner-appellant’s action without costs;
and

3. In not awarding attorney’s fees to petitioner-appellant.

The new Civil Code prescribes the following:

“Art. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage on the part of the husband, as defined
in the Penal Code; or

(2) An attempt by one spouse against the life of the other.”

In the case at bar the alleged maltreatments to the wife by the husband occurred before their separation
a mensa et thoro in 1947 must not have amounted to said husband’s attempts on the life of his wife,
since the latter did not institute any action for the legal separation from him upon the effectivity of the
Civil Code on August 30, 1950, and this case was only brought to court on October 26, 1951, after the
alleged maltreatment of September 1951 had taken place. Therefore, in this appeal we only have to
determine whether the maltreatments that appellant suffered at the hands of the respondent after their
separation of dwelling, which allegedly occurred in December, 1950, or January, 1951, and September of
the latter year, furnish ground for the legal separation applied for under paragraph 2 of Article 97 of the
Civil Code.

In appellant’s brief mention is made of the testimonies of Jovita Faustino, a tenant of apartment No.
2068 Ipil St., Manila, owned by appellant’s father, Felix Muñoz, of Meycawayan, Bulacan, and referring to
the quarrel that the spouses had in March of 1950; of Faustino Mallari, patrolman in the Manila Police
Department, referring to the spouses’ encounter in December, 1950, or January, 1951; of appellant’s
counsel, Attorney Manuel M. Macias, relative to the occasion in which the spouses met at his office on
or about September 30, 1951; and of appellant herself. The maltreatment referred to by Jovita Faustino
consisted merely in appelle’s giving a fist blow on the face of appellant. Patrolman Mallari did not
witness the maltreatment on which he testified, for he was called by appellant to intervene in the
quarrel between the spouses when it was already over, and the only thing he noticed was that she was
crying and that there were certain scratches on her brow and cheeks and on certain points of the neck
which were blackened (ecchymosis). About the quarrel spoken of by Attorney Macias, the latter declared
that appelle boxed his wife on the abdomen, pulled her hair and had also twisted her neck when said
attorney, Leoncio Santos and Jose Enriquez separated petitioner and respondent.

An attempt on the life of a person implies that the actor in the attempt is moved by an intention to kill
the person against whom the attempt is made, and after a careful examination of the evidence produced
by appellant we cannot make up our mind to declare that the alleged maltreatments of respondent to
his wife were moved by such intent to kill. On the contrary, we share the opinion of the trial judge who
declared that said maltreatments cannot constitute attempts on the life of appellant as provided in
Article 97, No.2, of the Civil Code of the Philippines.

From the second edition of the Revised Penal Code by Dean Vicente J. Francisco – Book II, part 1, pp.
671-672 – we copy the following:

“In the prosecutions for frustrated or attempted homicide, the intention to take life must be proved with
the same degree of certainty as is required with respect to other elements of the crime, and the
inference of such intent should not be drawn in the absence of circumstances sufficient to prove such
intention beyond reasonable doubt (People vs. Villanueva, 51 Phil., 448). It is absolutely necessary that
the homicidal intent be evidenced by adequate acts which at the time of their execution were
unmistakably calculated to produce the death of the victim, since the crime of frustrated or attempted
homicide is one in which, more than in any other case, the penal law is based upon the material results
produced by the criminal act. It is not proper or just to attribute to the delinquent a specific intent to
commit the higher crime in the absence of proof to justify such a conclusion (U.S. vs. Taguibao, 1 Phil.,
16). Conformably to this rule, therefore, an accused who, upon seeing a man plowing the land which was
the subject matter of a dispute, immediately attacks the latter, inflicting blows upon his neck with the
back of the bolo, must be convicted of physical injuries, and not of frustrated homicide, because the
mere fact that the assault was committed with the back instead of the cutting edge of the bolo negatives
the idea of homicidal intent and precludes the crime from constituting frustrated homicide.” (U.S. vs.
Taguibao, 1 Phil., 16).

“Nothing is more difficult to discover than intention, this being a mental act; we are only able to deduce
it from the external acts performed by the agent, and when these acts have naturally given a definite
result, courts should not without clear and conclusive proof, hold that some other result was intended
(U.S. vs. Mendoza, 38 Phil., 691, 693)> It is always to be remembered that ‘the first and simplest
presumption which, as stated above, the law draws with respect to human conduct, in connection with
acts of violence, is that the actor intended the natural consequence of his acts; and this presumption
should be implied in a fair and rational way, with proper regard to all the details of the act, and without
the suppression of any of its elements’. *** Likewise, where the accused inflicted a scalp wound with a
hatchet and struck at his victim a second time, it should not be inferred, from the mere fact that a
hatchet in the hands of an infuriated man is a deadly weapon, that the accused really intended to kill
(People vs. Villanueva, 51 Phil., 488). When criminal liability is made to consist in the intention to
perform an act which was not realized, the facts from which it is claimed that intention sprang must be
such as to exclude all contrary supposition. When this intention is not necessarily disclosed by the acts
performed by the defendant, greater importance should not be given to such acts than that which they
in themselves import, nor should the defendants’ liability be extended beyond that which is actually
involved in the material results of the act.” (U.S. vs Mendoza, 38 Phil., 691).

In the case of U.S. vs. Reyes et al., 30 Phil., 551, the Highest Tribunal of the land said the following:

“Homicide; Criminal intent. – When the case affords no good reason for holding that the assailants
positively intended to kill the injured party in spite of the persistent and repeated beatings they gave
him, however much they plainly demonstrated their intention of doing him injury, by striking him in an
inhuman manner on various parts of his body, it is improper to classify the crime as either frustrated or
attempted homicide. A personal assault must be punished according to its consequences and the harm
done to the victim, for the penal law in this class of crimes is only concerned with the material results
produced by the transgression, unless the perverse intention of taking the victim’s life be clearly
manifested.”

In the maltreatments complained of in this case, the respondent only used at most his bare fists or
hands and desisted from giving further chastisement after the first blows were given at the spur of the
impulse. It is argued, however, that this is a civil case and that appellant is only bound to prove her right
of action by preponderance of evidence and not by evidence beyond reasonable doubt upon which a
conviction for attempted paricide would rest, and though we may, to a certain extent, agree with counsel
for appellant on this point, yet we cannot help but declare that in so far as the intent to kill is concerned,
it must be established with clear and convincing evidence, and that in the case at bar said intent has not
been proved by such evidence. Petitioner-appellant herself should not have been so sure of her evidence
when instead of the present action she dared not cause the prosecution of her husband for attempted
parricide as a means of establishing her right to secure the legal separation she applies for in this case.

Wherefore, the decision appealed from, being in conformity with the law and the evidence of record, is
hereby affirmed without pronouncement as to costs.

It is so ordered.

Peña and Makalintal, JJ., concur.

Judgment affirmed
Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,

vs.

HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch
18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the
respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to private
respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated 5 August
1987, denying petitioner's motion to suspend hearings in the action for legal separation filed against him
by private respondent as well as his motion to inhibit respondent Judge from further hearing and trying
the case.

On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court
of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by
respondent Judge, a complaint against petitioner for legal separation, on the ground of concubinage,
with a petition for support and payment of damages. This case was docketed as Civil Case No. 10636. On
13 October 1986, private respondent also filed with the Municipal Trial Court, General Santos City, a
complaint against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case
No. 15437111. On 14 November 1986, application for the provisional remedy of support pendente
lite, pending a decision in the action for legal separation, was filed by private respondent in the civil case
for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The
payment of support pendente lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents
consequent thereto, such as, application for support pendente lite, should be suspended in view of the
criminal case for concubinage filed against him the private respondent. In support of his contention,
petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. — Whenever the offended party shall have instituted the
civil action to enforce the civil liability arising from the offense. as contemplated in the first Section 1
hereof, the following rules shall be observed:

(a) After a criminal action has been commenced the pending civil action arising from the same
offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such
civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all
proceedings related to legal separation will have to be suspended to await conviction or acquittal for
concubinage in the criminal case. Authority for this position is this Court's decision in the case
of Jerusalem vs. Hon. Roberto Zurbano. 1

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would
be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of
the then provisions of the Rules of Court on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the
following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the
offense charged is impliedly instituted with the criminal action, unless the offended party expressly
waives the civil action or reserves his right to institute it separately;

(b) Criminal and civil actions arising from the same offense may be instituted separately, but after
the criminal action has been commenced the civil action can not be instituted until final judgment has
been rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same offense can
be prosecuted and the same shall be suspended in whatever stage it may be found until final judgment
in the criminal proceeding has been rendered ... (Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be
suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability arising
from the offense". In other words, in view of the amendment under the 1985 Rules on Criminal
Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce
the civil liability arising from the offense" even if both the civil and criminal actions arise from or are
related to the same offense. Such civil action is one intended to obtain the right to live separately, with
the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of
offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As
correctly pointed out by the respondent Judge in his Order dated 5 August 1987:

The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935,
April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the
Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising from the same offense can be
prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in
the criminal proceeding has been rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil
actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of
Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense
charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability
arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action
arising from the offense."

As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at
the conjugal rights of the spouses and their relations to each other, within the contemplation of Articles
7 to 108, of the Civil Code."2

Petitioner also argues that his conviction for concubinage will have to be first secured before the action
for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged
offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by
preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is
necessary. To this end, the doctrine inFrancisco vs. Tayao 4 has been modified, as that case was decided
under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same grounds
for legal separation under the New Civil Code, with the requirement, under such former law, that the
guilt of defendant spouses had to be established by final judgment in a criminal action. That requirement
has not been reproduced or adopted by the framers of the present Civil Code, and the omission has
been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no
proof of grave abuse of discretion on the part of the respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at the
discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too onerous,
he can always file a motion to modify or reduce the same. 7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of
supportpendente lite and the denial of the motion to suspend hearings in the case, are taken by the
petitioner as a disregard of applicable laws and existing doctrines, thereby showing the respondent
Judge's alleged manifest partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a
party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge
from hearing the case, on the ground of bias and manifest partiality. This is more so, in this case, where
we find the judge's disposition of petitioner's motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

114 A. 428

SARGENT

v.

SARGENT.

No. 46-713.

Court of Chancery of New Jersey.Dec. 29, 1920.

[114 A. 429] Suit for divorce by Donald J. Sargent against Frances L. Sargent. Decree for defendant.
4

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.

7FIELDER, Adv. M.8

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.

9
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.

10

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 black [114 A. 430] man, 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.

11

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.

12

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.

13

I shall first consider the testimony tending to show inclination and opportunity.

14
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.

15

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 she [114 A. 431] was 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.

16

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.

17

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.

18

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.

19

Mrs. Sargent and Simmons positively deny all these alleged occurrences.

20

I think this case a striking example of [114 A. 432] the 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.

21

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.

22

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.

23

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.

24

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 end [114 A. 433] of 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.
25

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.

26

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 on [114 A. 434] the 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.

27

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.

28

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.

29

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 would [114 A. 435] entertain 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.

30

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.

31

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.

32
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, [114 A. 436] 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.

33

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, [114 A. 437] 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.

34

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.

35

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.

36

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 could [114 A. 438] further 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.

37
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.

38

There is, however, one further question which requires consideration. Section 28 of the Divorce Act (2
Comp. St. 1910, p. 2040) provides:

39

"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."

40

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 supplanted [114 A. 439] Viola 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.

41

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,

42

49 Atl. 589, reversed 63 N. J. Eq. 348-367,

43
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.