, 1868-08-21
The Parker Divorce Case.
Synopsis of the Testimony and Finding
of Judge Wyche.

Wyche, at chambers, on Monday, August 10th,
and occupied the time of the Court the greater
part of three days. Messrs. Lasater and Ross
appeared for the plaintiff; Messrs. Sharpstein,
Caton and Dugan for the. e.defendant. The case
was thoroughly contested, and owing to the high
social position of one OF the parties attracted
unusual attention. We have not space for full
report of the testimony, but find room for
JUDGE wYCHE's DECISION.
DiUores-Aaitie 4. Parker Us. H. Parker.-At
chambers, August TO- IL and IL, 1863
l. Under the provision in our statute, that
I" Any person who has been a resident of the
Territory for one year may file bis or her COM
plant for divorce" the wife may maintain
her suit, although she may have been married
| only six months and NAV have resided in the
Territory only since her marriage provided, the
husband for more than one year previous to the
suit bad been and was at the institution of the
suit a resident of the Territory-the domcil of
the husband being that of the wife for the pur-
poses Of the suit and within the meaning of the
statute.
D. Adultery, while most generally established
by crcumstantial evidence, is not to be inferred
from circumstances and facts equally capable of
| two interpretations.
8. To constitute cruel treatment, it is not nee
essary there should be the infiction of blows /;
happiness being the main purpose of marriage,
when either party wfully and maiciously pur-
sues a course of treatment toward the other that
renders happiness impossible and life burden
some, such treatment is legal cruelty-whether
it be by the inhiction of blows or mental suffer.
ing and anguish-and the injured party has the
right to escape from such union ard seek hapS
! piness elsewhere.
The parties were married in Portland, Oregon,
December 8th, 1867, and came to Walla Walla
! on the llth of the same mouth, where they have
since resided the defendant at the time of his
marriage and for five years previous having been
resident of this Territory. On this state of
facts it is urged by the defendant that the plain
tiff has no status in this Court as our statute
provides that "any person who has been a resi-
dent of the Territory for one year may file his
or her complaint for divorce" and the plain
TIN has resided here only since the llth of De-
cember, 1867.
Just how comprehensive the Legislature in,
tended this provision to be may not be very
clear, and while the decisions in some of the
States on statutes somewhat similar look to O
/ view adverse to the one here taken vet on the
whole, without citing authorities or giving der
tailed statement of reasons, am of the opinion
that whereas IN this case-the parties reside
in the Territory at the institution of the suit and
the husband has so resided ever since his mar,
rage and for several years previous, that the
domicl OF the husband is the domicil of the wife
| for the purposes of this suit and within the
meaning of the statute. The plaintiff certainly
| had lost her residence in Oregon and could in,
sttute no suit there, and it is equally clear that
the husband could institute suit here against the
plaintiff It would seem improbable that the
Legislature intended to give the husband the
right in such case to maintain his suit and vet
deny the right to the wife.
The Court here gave a lengthy resume of the
main facts in the case, which have been heard by
the public and for want of space we omit The
| Court then proceeded to say;
This, in Substance, is the showing made bv
| both parties, many facts and incidents more or
| less material being omitted, and upon this state
OF iactS the question arises, has the plaintiff the
right to divorce OF either of the charges made
! In considering the charge of adultery. it is To
| be observed that no witness testiies to the act
| nor are there any admissions of the act by any
| of the parties implicated. While therefore this
lack of positive proof is weakness iu the case
it is yet true that the authorities all agree that
this Is "a crime of darkness and secresy; parties
are rarely surprised in it, and SO it not only NAV
but ordinarily must be established BY circumS
staucial evidence. bishop on marriages and
and divorces, section 422. 1t is announced, too,
by the highest authorities. as a safe and inst
rule, that adultery is not to be Inferred from
circumstances and facts in a case equally cana.
bic of two interpretations. Green on Evidence
I'd Vol, Sec 4O Bishop on Marriage and Di
yorces, Sec 423i Ferguson We Ferguson, Sd
Sandford, 307. Speaking of adulterv Lord
Stowell says courts of justice will Judge of
facts as other men of discernment exercising a
sound and sober judgement on circumstances
| duly proven, judge of them. The only general
rule that can be laid down upon the subject is
that the circumstances must be such as would
lead the guarded discretion of reasonable and
l in At MAJ To Tho 81,
| a harsh and Incorporate Judgment moving upon
appearances that are equally capable of two 10,
terpretations neither is it to be a matter of
artificial reasoning, judging upon such things
/ differently from what would strike the careful
and cautious consideration of a discreet man {"
Now, taking the facts and circumstances as de.
tailed by the plaintiff, and as detailed by princi
pal witness and the defendant, and all other wit.
nesses, both pro and con, and do thew lead the
| mud to rest satisfied in the conclusion of gnilt
IN this case? AS detailed by plaintiff thev Tend
very strongly to establish the charge and vel. even
under the showing made by plaintiff, the parties
may nave stopped short of the act and as de-
laiIeu oy Tue defendant, and by principal wits
ness, while they Indicate acts highly indiscreet
they lead the mind toward iunoeence Nov ~
circumstances and appearances being capable of
two interpretations, looking 10 some features tn
gnllt, and In some to innocence consider il
more in accordance with the recognized nrinci.
pies oil law and just determination of this case
to hold that the charge of adultery is not estab,
| hshed' The reputation Of families should be in
tue considerate keeping alike of courts aud com
munlties, aud every just mind would feel that
the character of family should not be DESTROYED
upon state of facts reconclable as well with
innocence guilt.
AS the testimony of Mrs. Parker and principal
witness is conflicting, it may be a lust OBJ.
servatlon that as Mrs. P. was probably, and
/ lRa tha
more serious than they were intended to be, and
lhat moved by this passion, she may have sup.
Posea that other acts and consequences were in
tended aud followed and on the other hand, said
Wthess' recognizing that character is inzol-
Ieu, Is naturally disposed to place the most fa>
'o'a''e Interpretation on these different acts and
tuese considerations with the foibles of nature
Anu the tAllaey of memory will go far toward
reeoneilng these contradictions. In connection
WIN 'hls charge, the high position of said wit
ness mas oeen urged in this case. i recognize
Ine iaet that this witness has always occupied a