72 Ill. App. 500 | Ill. App. Ct. | 1897
delivered the opinion oe the Court.
This was a bill for divorce, filed by appellant, charging his wife with adultery with one Frank W. Warren. Appellee answered, denying the charge, and upon that issue the case went to trial by a jury which resulted in a verdict of not guilty. _
The evidence was circumstantial and voluminous. Inasmuch as we shall be compelled to reverse the decree because of error in instructions and remand the cause for another trial, we shall refrain from discussing it in this opinion. A sharp controversy is shown from an inspection of it and hence there was great necessity of giving instructions which accurately stated the law of the case.
In the fourth instruction given forappellee the court told the jury that “ The law requires that the proof should be satisfactory where, as in this case, a divorce is sought from the wife for adultery, and unless there is satisfactory proof of the guilt of the defendant of the actual offense of adultery it is your duty to find the issue for the defendant.”
The same was repeated in the eleventh and thirteenth instructions given for her; and in the second they were told that if the testimony was so contradictory or evenly balanced that they were unable to arrive at a satisfactory conclusion as to the guilt of the defendant it was their duty to return a verdict for her.
The effect of these instructions was to take the case out of the rule governing civil cases as to the degree of proof required of a complainant or plaintiff to entitle him to recover. They told the jury in effect that in the trial of a divorce case where the complainant charges his wife with adultery, more devolves upon him than to show by a preponderance of the evidence that his wife is guilty of the offense. The word “ satisfactory,” as defined by Webster, means “giving or producing satisfaction; yielding content; especially relieving the mind from doubt or uncertainty and enabling it to rest with confidence.” In the light of that definition jurors in the trial of such a case would .understand by such instructions that their minds must be convinced of the truth of the charge beyond a reasonable doubt. As we understand it a divorce case where the charge is adultery is no exception to the general rule governing civil cases as to degree of proof.
Instructions of this character have been repeatedly condemned by our Supreme Court as magnifying the burden which the law casts upon the plaintiff in a civil suit. Herrick v. Gary, 83 Ill. 85; Graves v. Colwell, 90 Ill. 612; Ruff v. Jarrett, 94 Ill. 475; Stratton v. Central City Horse Railway Co., 95 Ill. 25; Rolfe v. Rich, 149 Ill. 436.
In a line with these instructions was also the following;: 15. The jury are further instructed' for the defendant, that even though it appears from the evidence that the defendant and Frank W. Warren were in a position where it was possible for them to commit adultery, still, in order to find for the complainant in this case on that issue, they must be seen together not only under circumstances which would make it possible for them to commit adultery, but also under circumstances which can not be accounted for reasonably, under the evidence, unless they had that design.
Because of the error of the court in these instructions the decree must be reversed and the cause remanded for another trial. Reversed and remanded.
