The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-01-02
HAD BEEN CONDONED.
Interesting Questions in the Law
of Divorce.
The Bonds of Matrimony Not. Released by the
Imposition of the Bonds of San
Quentin Prison.

Some interesting questions IN the law Oh
divorce were decided by Judge Wallace of
the Superior Court on Wednesday last,
which will attract the attention both OF the
bar and the general public.
In Williams VS.. Williams the plaintiff
brought an action for divorce against her
husband on the sole ground OF his conyic-
ton OF felony, alleging also his present
confinement in the State Prison. The pris-
oner'S term will expire in November. 1898.
The defendant, by his attorney, Leonard
). Clark, answered the complaint, setting
up by way Of defense that his offense was
condoned by the plaintiff, and praying that
the divorce be denied.
Upon the filing of this answer plaintiffs
counsel Immediately gave notice to defen-
dantS counsel that he would apply to the
court for an order striking out defendant
answer on the ground "!hat the defendant
has no civil rights, being confined in State
fnson under sentence Of competent court
Ior felony, and therefore incompetent 10
DEFEND said action"
PRISONERS RIGHTS.
Section 673 of the Penal Code provides
That a sentence of Imprisonment in State
prison Tor any term less than life sus-
ponds all the civil rights Of the person so
sentenced, and fOrfeitS all public offices
ana all private trusts, authority Or-p0Wer
during such Imprisonment"
AT the hearing of the motion, counsel for
me defendant argued that by the suspension
Oh MS civil rights is meant that his powers
are suspended and limited to those granted
by express statute while his rights are pre-
served; and this Is the doctrine aid down
IN the only authority in this State, TO wit:
Estate OF Nevac, So Cal. 3G2
No civil rights are lost. They are merely
tad for fr,itx TO-
rights. the law with all its remedies offers
instant redress
while his rights are under the seal Of the
law, his powers ana privileges are gradually
expanding and enlarging under the force of
special statutes in that behalf.
In 1862 law WAS passed in this State
whereby cOnvicts were allowed to make
DEEDS and other Instruments in the mode
thereby prescribed, with the like force and
eHect as II they were not convicts.
MAY TESTIFY.
In 1872 another act was passed in this
State, which was embodied in Section 1879.
{. Z. T., whereby it was enacted that con-
vicLOn Of felony should not exclude anyone
from testlfylng as a witness in all courts,
civil and criminal.
In 1874 a law was passed by our Legis-
lature adding new ground as cause of
action for divorce by adding TO Section 90
OF the Civil Code sixth ground OF action in
This was in effect an enactment that one
convicted OF felony might be made party
defendant III an action for divorce, and as it
placed no limitations upon the manner or
form In which the defense of such a de-
PENDANT might be asserted and maintained,
we must accept IL as fact that his defense
might be urged in the manner usual with all
defendants, especially as ne Is directed Dy
the summons 10 appear and answer within
The usual time given in ordinary cases,
which direction this defendant has obeyed.
On The submission Of the motion the
Court refused 10 grant the motion at that
time and took it under advisement until the
trial of the case, which was set down for q
day certain
PROCEEDED TO TRIAL.
At the day of trial the Court denied the
motion to strike out the answer, and or
dered the parties to proceed TO trial.
On establishing the conviction of de-
PENDANT for felony by the record thereof
and the identity OF the defendant with tue
party convicted plaintiff rested.
Defendants counsel then, by proof of fire.
Quent visits of plaintiff 10 defendant, at San
Quentin, during all the time Of his c0nfine-
ment, and uD TO within about two months
prior TO the commencement Of the action,
and by numerous letters from plaintiff to
defendant during that time, all expressing
the greatest interest and anxiety concerning
his health and comfort and Astounding in
aHecllOnalP, loving ana cOnndentlal SeHil-
ments and expressions. claimed that the
offense constituting the cause of action had
been cond0ned by plaintiff. Other facts,
showing re cipr0catiOn by defendant and
that the plaintiff and defendant we're not
permitted, by the strict rules of the
prison, to have any personal interviews eX-
cept in the presence OF an Off er of the
prison, established, in the mind Of the Court.
that c0ndonatiOn had been made out, and
judgment was !hereupOn rendered for de-
PENDANT, denying the divorce.
REQUIREMENTS NECESSARY.
The following requirements are necessary
to conformation:
Observation-Disclosures on the part OF the
cOndoner Of the facts constituting the cause OF
divorce.
SecOnd-Reconclation and remission OF the
offense by the Injured party.
Third-RestOraton OF The offending party TO
all marital rights
Plaintiff claimed that conformation could
not apply in this class of cases, and that
there was no restoration of defendant to
marital rights; but the Court held that con-
donation was possible of every and all
causes of action Tor divorce, and that in
this case there was, to all ntents and pur-
poses, restoration TO marital rights so far
as possible. That conformation was an act
OF the mind, tested by the intent and desire
to assume former relations. which was
fully evident in this case.