Daily v. Daily

• Decision Date: 30 September 1872
• Citation: 1872 WL 8320,64 Ill. 329
• Parties: EDWARD DAILYv.ALZINA DAILY.
• Court: Illinois Supreme Court

64 Ill. 329

1872 WL 8320 (Ill.)

EDWARD DAILY

v.ALZINA DAILY.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was a bill for divorce, filed by appellee against appellant, charging adultery with several women. The evidence was voluminous and mostly circumstantial. G. A. Marsh testified that in 1868 he was marshal of the city of Galesburg; that his attention had been called to the conduct of appellant and certain women, and he was requested to break it up; that one night he found appellant in the back part of the house of one of these women, in a dark room with her; that he called out and told him of the charges he had heard, and asked him if they were not true; that appellant did not attempt to deny it, and asked witness not to urge him to confess, saying he knew he had done wrong; also, that the reputation of the woman was not good for chastity.

The court instructed the jury for the appellee--

1. The jury are instructed that adultery being peculiarly a crime of darkness and secrecy, it is a fundamental principle never to be lost sight of that this offense need not be proved in time and place, but it is sufficient to prove the parties together in some place where the offense might probably be committed, and there was an opportunity to commit it. To raise the presumption of adultery, three things must combine, and where they do combine, the offense is almost as a matter of course in law presumed to be committed: First, the criminal disposition or intent in the defendant; second, the same in the particeps criminis; third, the opportunity. The crime may be proved by facts and circumstances, such as would lead a reasonable and cautious man to say from the proof, I have an abiding conviction that the offense has been committed.

2. The main question to be decided by the jury in this case is, whether the defendant has, within the last five years, been guilty of adultery; and in determining this question, the jury may properly consider the evidence as to defendant's keeping company with lewd women, the circumstances attending it as proven; and if from the whole evidence the jury believe that defendant has been guilty of adultery, they should find for the complainant.

3. Unless from the evidence the jury believe that the facts given in evidence may reasonably be reconciled with defendant's innocence; and if, on the contrary, they from the evidence believe such circumstances are harmonious with guilt, they may properly find the charge of adultery proven. 4. In determining from the evidence what was the character for chastity of the women named by the witnesses, viz: Mrs. Guist, Mrs. Jerome Daily and Mrs. Webster, the jury may properly consider the evidence as to the reputation of such women as to chastity; and if from such evidence the jury believe that their reputation for chastity was bad, that is sufficient evidence upon this point.

5. The main question in this case is, whether, within the last five years, the defendant has been guilty of adultery; and in determining this question, the jury may properly consider any evidence tending to show that defendant kept company with lewd women, and the circumstances attending it; and unless from the whole evidence the jury should believe the evidence is such as would leave a reasonable man to say, I do not believe the offense has been committed, they should find the charge of adultery proven.

On behalf of defendant, the court instructed the jury--

1. The jury are instructed that the law does not favor the severing of the marriage tie, unless for good, sufficient and legal reasons; and, therefore, if the facts proved and relied upon in this suit are equally capable of two interpretations, one of which is consistent with defendant's innocence, they will not be sufficient to establish guilt, and it will be the duty of the jury to so find by their verdict.

2. The jury are instructed that before the jury can, under the law in this State, find the defendant guilty, the adultery must be proved to be committed by direct or circumstantial evidence, and not on mere suspicion or even on bad reputation.

3. The jury are instructed that the law requires, before the defendant can be found guilty in this case, a reasonable degree of strict affirmative proof; that circumstances merely suspicious are insufficient; but that the proof must be clear, satisfactory and conclusive to the mind of the jury that the defendant is guilty; and if the jury do not believe from clear proof, by positive or circumstantial proof in this case, that the crime of adultery has been committed by the defendant as charged in the bill, the jury will find defendant not guilty.

4. The jury are instructed that the law raises no presumption of guilt from the defendant's refusal to answer the questions that were propounded to him by complainant's solicitor; and unless the jury find from other evidence that the defendant is guilty, by clear, satisfactory and convincing proof, it will be their duty to find the defendant not guilty.

The jury found for the complainant, and the court rendered a decree for divorce, etc.

Messrs. WILLOUGHBY & GRANT, for the appellant.

Messrs. MCKENZIE & WILLIAMS, for the...