Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-12-07
TIE BUTLER cAsR-DEcggE OF d.
v0acE.


defendant the trial OF this cause TWO lssoe
OF fact were submitted 70 jury. as follows NH
First-DId the defendant, on the I'D gay o. al.ieh
A. D. 1881. commit adultery win Maggie @ei'i'
seeondIas the jefendaat, within the ten year
. preceding May 6. 1881, been guilty oil extreme cru
ei1 T ~ 'e ,b n The issues the jury very promptly
fond and returned an affirmative verdict, WHERE
UPON the case was reserved for argument before th'
Court.
r r defendant made charges Of misconduct on tn,
part Of tine jury and moved TO set aside and disre
pard the verdict upon the ground OF such Iniscon
duct and also oecause the verdict vas not supported
by the evidence. TO sustain the first ground aifi
dayits OF four jurors read, stating that they
four had each voted in the negative upon each o.
the issues when under consideration in the jury
room. II the time the afh 5aYIt5 read, nay i'm
preston against the admissability Of such ey
dence but they received pro f0l7HG for future
and more mature consideration. Subsequent rehsc
ton and examination OF the books have confirmed
my first impression Without those afijavits there
is no sufficient evidence upon which 10 upute mis-
conduct to the jury, ard the motion is denied.
/. the province and the duty Of the Court 60 ex.
anime the whole case and find the facts III cases OF
this character the verdict OF the jury upon special
| Issues being, at most, only advisory to the con-
| science OF the Court; and therefore the second
ground OF the motion may be dsregarded or cOnsid-
cred as beng submitted as d part OF the case as
| finally submitted.
The Court is bound by the findings OF the jury
IN this case, but may for good and sufficient cause
disregard them, but it is good and safe rule Tor the
Court to adopt the findings Of the jury IN so far as
they appear TO be reasonable conclusions IRON the
evidence offered In other words if the conscience
Of the Chancellor can be reconced with the findings
OF the jury reasonably fair deductions from the
evidence in the case the verdict viii be followed :
but II the verdict be Banifesty against the weight
OF evidence, it is not only within the power but 1t
IS the duty Of the Chancellor to disregard the con-
ciusons Of the jury and find the facts according to
/ bis own Judgment. This power was conceded by the
argument upon both sides, and Is too well settled
| to require any elaboration here
/ For convenience in discussing the case it may be
well to reverse the order and refer to the second
finding first. The jury found against the defend
emit upon the issue relating to extreme cruelty and,
without making review OF the somewhat Volunl
nous evidence, pro and con, upon this branch CT the
case, suffice it to say that there was sufcient EVIL
dence on this point 70 sustain the verdict Of the
Jury, and can, without doing any violence to my
conscience, adopt it reasonable conclusion from
! the conflicting evidence although plaintiff herself
| has NOT been free from fault; therefore upon this
ISIS lie the finding in favor of the plaintiff is approved
an adopted as the finding OF the Court.
AS to the other point there is more embarrassment.
7 ne defendant is charged with serious and almost
u natural crime against his martial yows, and against
clnrncn deccucy Theyery statement of such charge
arouses Just feeling Of Indignation in the breast
| of every chiyalrouS high-minaed man, and
| awakens the wrath Of every virtuous woman and
it is of the utmost Importance that those who are
called to pass sentence upon such charge should
exercise extreme care to avoid the natural inclIna
ton 10 prejudice against the accused. The mere
statement that one has been guilty Of some vile or
iguoble act furnishes his good name at once, and
when Dame Rumor takes up the theme and agtates
it into community scandal, it too frequently hap
pens that the accused Is virtually cIed into Court
to prove that the judgment already pronounced
against him is unjust, rather than to have full
ir and impartial trial to ascertain whether or not
the presumption of innocence vouchsafed him by
our enlightened code can be overcome by pre-
ponderance OF legal evidence. The more abhorrent
the crime charged the greater the tendency iumpa
haty conclusions OF guilt and the greater also should
be the caution exercised In wei hing the evidence in
order that feeling OF Indignation for the crime
may not become q factor in forming our conclusions
to the guilt of the accused. These remarks
not be understood as having any especial appliea
ton to this case, but merely referring to most
natural tendency among our 70 heartily abhor
aud hastily condemn that which is grossly indecent
The law recognizes 10 degreesH in adultery, but
morality does. Every act OF adultery is in the eyes
OF the law, capital crime against the marriage
vows; but public opinion Is more scrutinizng and
attaches degree of obloquy according to the cir
cumstances OF each particular
The defendant is charged here with the commits
sion of the act under crcumst Ances of peculiar G.
gragation Maggie AinsN orth isisis wi,es niece and
has been reared an his house as a member of his
family. Toward her he has stood in the place of
parent, ard in such relation, 1t would be a vile
man indeed who would even fail to protect when he
could, her good name and her virtue The act is
alleged to have been committed on the 23d day Of
March, 1881, IN his own residence IN broad ayigt
and with his family about the house.
The law, in its wisdom, presumes every man to be
innocent until his guilt is proven and the more
natural the act charged the more proof reqail to
overcome the presumption.
In considering the evidence, must bear in
mind that only one act is charged, and that upon
the day named.
To sustain the charge the evidence of Mrs Powers
of the plaintiff and Maggie Ainsworth is relied upon,
and the defendant fatty denies the whole thing.
To speak first of the evidence OF Mrs. Powers,
most estimable lady, and door neighbor to the
parties it viii be remembered that she was clled
in to see Mrs. Butler Just after dark the day
named and Witnessed scene Of considerable excite
ment Mrs Butler was crying and violently berating
her husband and Maggie Ainsworth.
The defendant would occasionally attempt to make
some statement of denial or Justification, but was
requested by Mrs Powers to refrain from so doing,
as it seemed to excite Mrs. Butler for him to say any
thing. The only purpose for which such evidence
is admissible is to show admissions of party which
NAV be implied from his silence. Under the c;rcum-
stances detailed by Mrs Powers no possible impli-
cations can arise from the defendants silence, and
therefore her evidence does not in any degree tend
to establish the charge.
Then we have toe tes;im1n of the plaintiff and
Maggie Ahsworth alone ia support OF the allegation.
The defendant is a truckman and works during
the ordinary laborng hours, coming home to supper
usually about o'clock in the evening. On the day
IN question the sun went down some twelve or If
teen minutes past 6 o'clock, and the plaintiff says
they had supper earlier than usual that day, and
that she went out little before little after 6,
pretending to visit sick neghbor, went around the
b ock and came in through the alley from the next
street and entered the back yard That while there
| she saw defendant come out and look around the
| place and then 20 back into the basement OF the
! house, she at the time standing in the woodshed.
She then put pair of socks over her shoes to mufe
| the noise OF her feet in walking and went up the
| outside back-stilrs and peepea through the key
hole of the back door OF the hall of the first floor
She says she had implicit confidence in Maggie, and
still she took all this trouble To eavesdrop and hear
/ ,r,a and the defendant MIGHT he talkiDsr
about She peeped through the key-hole and wit
messed remarkable proceeding in the hall
The whole evidence upon the point clearly indi-
Gates TO my mind that at the time the plaintiff was
peeping. or trying to peep, through the keyhole it
was so late aud the light dim, that she could not
discern any object in the hail. The usual supper
hour the situation Of the premises; the fact that
Mrs. Butler stood in woodshed only a few feet
from Butler and saw him walking in the back yard,
not being herself, are potent circumstances to
show th4t it nearly quite nghtfal. All agree
that the gas had not been lit in that part of the
house, but Mrs. Powers called very soon, and
the gas burning when she came in. In short,
the evidence convinees me that Mrs Butler could
not and did not see :he scene she describes except
in so far as it existed in the imaginiEgs OF mind
distorted to the verge Of dethroned by susp
cion and jealousy.
Then to consider for a moment the testimony of
Miss Ains~ orth. l shall not reiterate her story,
with its disgusting details but viii merely remark
that while it may be true the whole story seems SO
unreasonable and unnatural, and inherently i'm
bahle that think IL would ne unsafe to convict
any person of any offense without better proof.
The simple fact that young woman of fair educa-
ton voluntarily assumes the witness stand, and
under cath proclsims to the world her promptness
to Weld, without solicitation or temptation, the
citadel OF her virtue TO man whom she heartily
hated and despised shows her mental and moral
qualities to be such to suspicion, rather
than inspire confidence in her integrity. 1t seems
impossible to believe all her story, and not being
able to believe it all, to discard part and
cep. the balance am forced to disregard it all as
too doubtful and unreliable upon which TO convict
any person of serious crime. States evidence
witnesses are always regarded with suspicion and
Justly So the law even going 50 far as to PROHIBIT
the conviction of any person charged with the com
mission OF crime upon the testimony OF an accom-
pliee, unless corroborated. The testimony given by
an accomplice, in order to be entitled to belief
OUGHT TO be reasonable ard cons tent, and to en-
brace relation OF facts reasonable within them
selves She is suspected witness, coming upon The
stand in a most usual and dubious attitude, and
her story is contrary to reason in many OF s details
| A Judgment will be entered dtssolvlng the BONDS
of nlatrimony between the parties 10 TINS suit, OF
the ground OF extreme cruelty.
Aud now having disposed of the principal ques
ton il becomes necessary to adjust the other mat
tiers dependent upon the main issue.
The custody and care OF the Oldest son, FRANK, a
well as OF Harry, the youngest, VIII be AWARDED =
the plaintiff but as to the bog, stephen, am tulil
persuaded that his best interests demand That III
should be ruled by stronger hand than that OF hl
mother. His manner Of speech and conduct as
witness indicate high temper and insuoordlnat'
spirit, and fear the result OF removing nun hon
the only natural and sufficient controlling power.
viii therefore be ordered that this boy be placed un
der the custody Of the father with liberty at all rea