Statement of case. guage, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty. (Kennedy v. Kennedy, 73 N. Y. 369; Evans v. Evans, 1 Hag. [Eng. ed.] 325; De Mali v. De Mali, 5 Civ. Pro. R. 306; Ruckman v. Ruckman, 58 How. Pr. 278; 1 Bish. on Mar. and Div. [6th ed.] §§ 717, 748.) No charge of infidelity made against the wife by the husband amounts to legal cruelty, unless it is "false," "malicious," "made in her presence and to her," and "as auxiliary to and in aggravation of threatened violence." (De Mali v. De Mali, 5 Civ. Pro. R. 306; Kennedy v. Kennedy, 73 N. Y. 369; Whispell v. Whispell, 4 Barb. 217; Barlow v. Barlow, 2 Abb. [N. S.] 259.) The fact that the first, last and only act of violence was committed in a mutual quarrel in 1877, and the defendant continued to live with the plaintiff until September 20, 1882, amounted to a condonation of the act complained of. (Reynolds v. Reynolds, 4 Abb. Ct. of App. Dec. 35.) The defendant, by admitting the abandonment of the plaintiff, and by seeking, affirmatively, a decree of separation, is in the same position, and must establish her case by a preponderance of evidence, the same as though she had commenced an action against her husband for separation on one or all of the grounds under section 1762 of the Code. (De Mali v. De Mali, 5 Civ. Pro. R. 321, 322.) John P. H. Tallman for respondent. It must be a very strong case which will induce this court to grant a final separation on the application of the husband. (Palmer v. Palmer, 1 Paige, 276.) Ill treatment and personal injury, or a reasonable apprehension of personal injury, is cruelty. Words of menace, accompanied by a probability of bodily violence, will be sufficient. It may be enough if they are such as inflict indignity or threaten pain. So, also, is a groundless and malicious charge against the wife's chastity. (Whispell v. Whispell, 4 Barb. 217.) So are the words of menace, accompanied by probability of personal violence. (Davies v. Davies, SICKELS-VOL. LXV. 24 Opinion of the Court, per DANFORTH, J. 55 Barb. 130.) If a wife is personally charged with infidelity, where the charge is unfounded and malicious, it may be regarded as cruel. (De Mali v. De Mali, 67 How. 33.) As great cruelty and as much inhumanity may be manifested in producing mental as in causing physical sufferings. They may be produced by acts which cause no physical pain, and even by words alone, and in cases like the present such acts and words have been regarded as cruelties. (Bihin v. Bihin, 17 Abb. 19, 26.) It is proper, under the general allegations of the pleading, to look at the general conduct of the husband towards his wife during their cohabitation, for the purpose of understanding more fully the particular circumstances complained of, and the relations existing between the parties. Whispell v. Whispell, 4 Barb. 217.) Where condonation is inferred from continued cohabitation, that condonation is regarded as conditional upon the husband's subsequently treating his wife with conjugal kindness. (Whispell v. Whispell, 4 Barb. 217.) When such condition is not kept, or where, after such implied condonation, the husband treats his wife improperly, her case, under such circumstances, rests upon a review of all of his conduct towards her during their married life. (Davies v. Davies, 55 Barb. 130.) DANFORTH, J. The courts were not troubled in this case with contradictory statements nor the evidence of casual observers whose inferences might be inflamed or partial, as their sympathies went with one or the other party. They have had only the testimony of the defendant, and that given not voluntarily or as a witness in her own behalf, but on compulsion of the plaintiff and then left by him undisputed. Yet from this testimony the courts below have reached different conclusions, the trial judge relieving the plaintiff by a decree in his favor, and the General Term adjudging that the plaintiff was at fault, and not only to be defeated by his own misconduct, but that by reason of it the defendant was entitled to recover upon her affirmative allegations. A new trial was, therefore, ordered, but the plaintiff by appealing makes that impossible, and he Opinion of the Court, per DANFORTH, J. consents to judgment absolute if the decision shall be affirmed. We think the evidence justified the conclusions of the General Term. The parties were married in 1834, and from that time until September, 1882, nearly half a century, lived together as husband and wife, she rendering wifely service as a helpmate in all that that term implies, until, as she alleges, compelled "by his faithless and hateful conduct as a husband, and his cruel and inhuman treament, to leave his side." The evidence in the case was adopted by the court as the defendant's pleading. From that it appears that in 1877 the plaintiff laid violent "hands upon her, led her to the door, threatened to knock her down, and struck at her twice." Upon another occasion, falling to the floor from sickness, "he said it was a pity she ever got up;" and again he said, "I will be glad when you draw your last breath." He called her "all the bad names that belong to a bad woman;" "a dirty bitch," "a liar," "a whore." He accused her of being "with different men in the neighborhood — naming several and having with them improper intercourse." These are the gravest circumstances that characterize his conduct as "cruel and inhuman." There are many others which made her life miserable and rendered it unfit that she should live with him, and impossible for her to do so with any sense of self-respect, or with any comfort. They were continuous and not occasional. Those mentioned bring the case within the statute which for cruel and inhuman treatment permits a separation. (Code, § 1762); and that relief, by the terms of the same statute (Id. § 1720), may be had by the wife, although the husband is the plaintiff. The circumstances which constitute his misconduct not only defeat his action, but entitle the defendant to the protection of the court. The ill-feeling of the plaintiff towards his wife was manifested repeatedly, not by mere "petulance or rudeness," but by a series of acts of personal violence and a continual use of insulting language. He thus caused the abandonment of which he complains, and his conduct entitles the defendant to a separation and a reasonable support at his hands. (Barrere v. Barrere, 4 Johns. Ch. 187.) Statement of case. The order appealed from should, therefore, be affirmed, and the defendant have judgment absolute according to the prayer of the answer. All concur. Order affirmed and judgment accordingly. 110 188 162 275 110 188 77 AD1189 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. Upon the trial of an indictment for seduction, under promise of marriage, the testimony of the prosecutrix was to the effect that the crime was committed in July, and that defendant thereafter had frequent intercourse with her until December. The prosecution was permitted to show, under objection and exception, that the prosecutrix had a child in August of the next year. Held, error; that the evidence did not tend to corroborate the testimony of the female as to the commission of the crime charged, as it did not tend to show illicit intercourse thirteen months before the birth of the child. People v. Armstrong (70 N. Y. 38) distinguished. It seems that on such a trial corroboration of the testimony of the female as to her previous chastity, or that she was unmarried, is not required. People v. Kearney (47 Hun, 129) reversed. (Argued June 15, 1888; decided June 29, 1888.) APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made January 10, 1888, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Onondaga, entered upon a verdict convicting the defendant of the crime of seduction under promise of marriage. (Reported below, 47 Hun, 129.) The material facts are stated in the opinion. W. P. Goodelle for appellant. The evidence of the subject of the crime, the prosecutrix, must be supported by other evidence as to all of the elements which are necessary to contribute to the crime, before the jury can convict. If the cor Statement of case. roborative evidence supports one or more, and yet fails to support all the necessary elements, such support is not given as the law requires to allow or sustain a conviction. (Penal Code 286; People v. Plath, 100 N. Y. 590, 593, 594; Armstrong v. People, 70 id. 38.) In criminal trials where the fact proved or corroborated is consistent with innocence, it cannot be accepted as any proof of guilt. (People v. Elliott, 8 N. Y. 223; State v. Warren, 1 Green Cr. R. 749; People v. Josselyn, 39 Cal. 398; People v. Williams, 29 Hun, 520.) The fact that the prosecutrix became pregnant and was delivered of a child August 19, 1886, which was conceived nine months before, to wit, November 19, 1885, is no evidence or corroboration that the defendant had intercourse with her July 4, 1885, and the court correctly charged the jury that the defendant could not be convicted of a seduction committed on the latter day. Subsequent acts of illicit intercourse do not even tend to corroborate the prosecutrix. (People v. Clark, 33 Mich. 112.) As there is no pretense of a promise of marriage prior to July 4, 1885, it cannot be claimed that defendant's evidence, that he had intercourse with the prosecutrix twice on June 10, 1885, is such supporting evidence as will sustain the conviction; if he, in fact, did have, which she denies, then she was not of chaste character at the time of the alleged seduction under promise of marriage, and the crime could not have been committed against her. (Safford v. People, 1 Park. Cr. 474; Cook v. People, 2 T. & C. 404; Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 id. 644.) It is not for the jury to determine what thè nature of the supporting evidence shall be, but this the law has determined and must determine. (People v. Plath, 100 N. Y. 590.) Lawrence T. Jones for respondent. The testimony of the female seduced is sufficiently supported by other evidence within the meaning of section 286 of the Penal Code. (Armstrong v. People, 70 N. Y. 38.) Supporting evidence was required as to two matters only, to wit, the promise of |