| Ill. | Sep 15, 1872
delivered the opinion of the Court:
This was a bill for a divorce, brought by appellee in the Knox circuit court, against appellant. The charge was adultery on the part of defendant.
It is first urged that the evidence fails to sustain the charge, and for that reason the decree should be reversed. There is much testimony tending to establish the truth of the charge; but as in all, or nearly all, such cases, there is no direct and positive evidence of the acts charged. In such eases, the parties generally use every effort to conceal the act, and courts and juries are compelled to determine the question from the behavior of the parties and from a great variety of circumstances, either of which, when considered alone, would be insufficient to prove the charge, but when considered together, may be, and frequently are, amply sufficient to establish the offense. It, like all other charges, may be established by circumstantial evidence, and the evidence need only, when considered together, convince the mind that the charge is true. If direct, positive evidence should be required, but few divorces would be obtained on this ground.
After a careful consideration of the evidence, we think it fully warranted the jury in arriving at the conclusion they did. The conduct of appellant can hardly be reconciled with his innocence of the charge. The pure and virtuous seldom are found acting as he did; nor is there but one or even a few isolated acts upon which the jury were left to infer his guilt. If but thoughtless indiscretion, he must be exceedingly obtuse, at his age, as to the ordinary proprieties of life. He seems to have been shut up alone, on many occasions, in a room at her house, with a woman who is proved to be generally reputed unchaste; and this is not contradicted by any evidence, and it is merely suggested that this may have all been innocent. Ho explanation is given for the doors being locked and all entrance to the house barred. Again, his almost daily visits to this woman, in the absence of her husband, and on no apparent business; his paying her money; his frequent meetings with her at the eating house, and their frequent rides together seems to be strong evidence of improper intimacy, especially when her general reputation for virtue is bad; and numerous other circumstances appearing in the evidence tend strongly to support the chai’ge. All of the evidence considered, we are clearly of the opinion that it supports the finding of the jury.
It is urged that the court below erred in admitting in evidence the deposition of defendant, as he was not a competent witness. We deem it unnecessary to inquire whether or not he was competent, as the court, by full and clear instructions, directed the jury to disregard it, and to find ■ for defendant, unless they found the charge established “by clear, satisfactory and convincing proof,” other than the deposition. This proposition was clearly stated to the jury, in several forms and in different instructions.
It is urged that the court gave improper instructions for complainant. The criticism of the second, we think is not well founded. We think there was evidence that appellant did keep company with lewd women. The witnesses did not state, in terms, that they were lewd, or had the reputation of being lewd, but they stated their character for chastity was bad; that they were reputed to be street-walkers, and such like expressions, all of which mean that they were reputed to be lewd. The court did not say, in terms, that they were lewd, but simply told the jury that they might consider the evidence that he did keep company with such women. The fourth instruction seems to-have but little pertinency to the case. It simply tells the jury they may consider the evidence as to the character of these womenand if, from the evidence, they believe it bad, that would be sufficient on that point. This instruction, although useless, would seem to be harmless.
But the strongest objections are urged against the fifth of complainant’s instructions. The instruction is awkwardly drawn, and is perhaps not precisely accurate. It, in substance, says if from the whole evidence a reasonable man could not say that he believed the offense had not been committed, then they should find the charge proved. It would have been more accurate to have told the jury that if a reasonable man would say from all the evidence he believed defendant guilty, then they should regard the evidence sufficient and the charge established. But notwithstanding this instruction may have been slightly inaccurate, we can not believe, in the light of. defendant’s instructions, that it could have misled the jury. His instructions were clear and easily comprehended, and directed to the points at issue, and certainly stated the legal propositions as strongly as the evidence could warrant. Under them, the jury could hardly have been misled by those of complainant.
It is urged that complainant was incompetent as a witness. "We do not find from the record that any objection was made or exception taken to her testifying in the case, and even if it was a valid objection, the question should have been raised and preserved in the court below. It comes too late when raised for the first time in this court.
It is objected that the court erred in decreeing that complainant should have the house and lot which had been conveyed to her during coverture, as her alimony. It may be that appellant’s means may have bought and paid for the house, but even if the property paid in exchange for it was in his name, it does not appear how much the labor and economy of complainant may have contributed to create the fund with which it was purchased; but independent of such considerations, appellant had the property conveyed to her, and it is by his own fault that he is now deprived of using it jointly with her. He seems to have expected to so use it when the conveyance was made, and it is his own violation of duty that has disappointed his expectations. Considering his conduct as shown by the evidence, we are not prepared to say the court erred in decreeing that she hold the property free from his claim: If, in the future, circumstances should render it
necessary, the decree for alimony can be changed and modified, as it remains under the control of the court by the provisions of the statute.
Perceiving no error in this record for which the decree should be reversed, it is affirmed.
Deoree affirmed.