{
  "id": 5107660,
  "name": "Isham Burnett v. John W. Luttrell",
  "name_abbreviation": "Burnett v. Luttrell",
  "decision_date": "1893-12-04",
  "docket_number": "",
  "first_page": "19",
  "last_page": "23",
  "citations": [
    {
      "type": "official",
      "cite": "52 Ill. App. 19"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 537,
    "char_count": 8866,
    "ocr_confidence": 0.481,
    "pagerank": {
      "raw": 1.2954407608217056e-07,
      "percentile": 0.6209446960035122
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    "sha256": "d8cb697c130cebca6eba55c03d88ec17e876a72b02a9f8005e48669d89e2c4fc",
    "simhash": "1:86cde624b7e7e5de",
    "word_count": 1503
  },
  "last_updated": "2023-07-14T20:04:33.379321+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Isham Burnett v. John W. Luttrell."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Pleasants\ndelivered the opinion of the Court.\nThis was an action on the case for Crim. Con. commenced in February, 1872, by appellant against appellee, which was tried by jury and resulted in a verdict and judgment for the defendant.\nThe parties are brothers-in-law, appellee\u2019s wife being appellant\u2019s sister. They lived on adjoining farms, and the families were intimate for many years, until September, 1891, when appellant, unseen and laboring under suspicions, saw his wife and appellee together in the yard, under circumstances which, if as he states them, would indicate' an improper intimacy. Tie then made a violent assault upon appellee, afterward filed a bill for divorce, which he dismissed, and then another, to which an answer and cross-bill for separate maintenance were filed, all of which were dismissed and settled by an agreement for separation and for disposition of the property they owned.\nThe case made for appellant consisted largely of acts of personal familiarity, occurring from time to time during a period of seven years before suit brought\u2014some half dozen in all\u2014which might have been entirely innocent, considering the relations of the parties, but easily misconstrued, exaggerated or perverted by a prejudiced, depraved or suspicious mind. Each was testified to by a single, uncorroborated witness, and Avas denied, explained or not remembered by appellee, no other, competent to testify, being claimed to have been present; and as to some of them, there Avere other circumstances tending to impeach their accuracy or their credibility.\nIn addition to these instances of alleged improper intimacy, three others were testified to, which, if true, admit of no explanation consistent with innocence; one by a man whose wife was a sister of appellant, one by his wife and the other by his son. Each of these men was confessedly playing the part of a spy, with suspicions already entertained. They had removed to Kansas, where their depositions were taken after they had been seen by appellant and had given him their affidavits. The general reputation of each for veracity was fairly impeached. It was from intimations by the son that appellant got the idea of the wrong here charged. He was separated from his own wife in December, 1891, after a cohabitation of less than three years, and his testimony, as it appears in the record, indicates an element of character, other than for truth, which might also go to discredit him. The act testified of by his mother, though an improper liberty, and not resented as it deserved to be, might have been misapprehended by the witness; nor would it, of itself, have warranted the conclusion claimed. It did not interrupt their social relations.\nAppellant\u2019s wife could not be a witness in the case, but he introduced in evidence, over appellee\u2019s objection, their agreement for separation, from which it may be inferred that she declared her innocence under oath; for it recites that she had obtained an injunction against him on her bill for separate maintenance. So far as appears she had always borne a good character as a wife, and was the mother of seven children.\nAppellee also had reached a time of life at which the passions of men generally are cooled, and was the father of five children, of whom two were dead and two married. His relationship to appellant\u2019s wife, while it justified some freedom of manner in his personal association with her, especially forbade and repelled all inclination to the act here charged. He emphatically denied the statements of appellant and his witnesses so far as they imputed to him any impropriety in his conduct with or toward her, or that any was at any time committed or intended. He gave his version of what took place on the occasions referred to by him and them, so far as he admitted having any remembrance of such occasions, which was innocent and not unnatural or improbable in itself. Of some he disclaimed all recollection, and denied the occurrence of others.\nFour or five testified to statements made by appellant out of court, tending to contradict or weaken his testimony, all of which he denied.\nIt is deemed unnecessary to state the evidence at greater length. Having considered it all, with the aid of counsel\u2019s suggestions, we are satisfied that it fairly supports the verdict. In no kind of case is the juror\u2019s advantage in seeing and hearing the witnesses greater, or their finding to be more respected than in this.\nWere they deprived of any proper means of reaching the truth, or materially misled as to their proper use, in any particular, by error of the court?\nAppellant was not allowed to state what he was worth when he made the agreement with his wife for their separation. We understand that such evidence is admissible in such cases generally. Here it was the last item offered in chief, and he was recalled to prove it. He had been examined at length without directly touching this point, and had put in evidence the agreement itself, which showed enough as to his pecuniary condition, for all legitimate purposes of the question. The court has some discretion as to allowing a witness to be recalled. If it was not properly exercised in this instance, what was the harm ? The evidence was admissible with sole reference to the measure of damages. If there were no damages it would have been useless, and the jury found that there Avere none.\nMrs. Ogan, a witness for appellant, identified a note received by her through the mail, without signature and in an unknown hand, stating in substance that the writer had heard appellee say he would give her a liberal reward if she would keep still and not appear on the trial against him. It was offered in evidence and we are surprised to learn that its rejection is complained of. It had no quality of evidence. An instruction asked for appellant was refused, as \u201c duplicated and triplicated,\u201d but counsel say they find no other in the case which declares that plaintiff may recover damages \u201c for the shame and disgrace of his children.\u201d\nThree other instructions, which were given, told the jury what they might consider in estimating the amount of plaintiff\u2019s damages, if any; among which in one was \u201c the mortification of the husband and his sense of shame,\u201d in another \u201chis mental suffering from the dishonor of the marriage bed,\u201d and in the third \u201c the social position of the parties and the family of plaintiff.\u201d\nIf the one refused really meant that he \u201c could recover for the shame and disgrace of his children,\u201d' we do not concede its soundness. If it means that he could recover for his own suffering from their shame and disgrace, which is a more accurate statement, we think it is substantially given in each of the other three.\nThe refusal of another (numbered 7), also complained of, was not error, for the same reason.\nSix instructions were given as asked for appellee. By the first it was announced that the burden of proof was on the plaintiff, \u201c to show to the satisfaction of the jury the alleged guilt of the defendant as charged,\u201d while by the last it was twice distinctly stated that only \" a preponderance of the evidence \u201d was required. Neither of the others contained anything on that subject, nor did any of those given for appellant.\nThe measure of proof was inaccurately stated in appellee\u2019s first; but it is hardly possible to suspect that it may have misled the jury or that the error affected, much less produced, their finding. The sixth told them correctly what measure of proof should satisfy them, and we can not doubt that this was understood to be in affirmance of the position we may feel sure was taken by counsel on both sides, in argument. Believing that appellant was not materially prejudiced by any ruling or by the giving or refusal of any instruction, by the court, and that justice has been done by this judgment, it will be affirmed.",
        "type": "majority",
        "author": "Mr. Justice Pleasants"
      }
    ],
    "attorneys": [
      "M. T. Layman and R. Yates, attorneys for appellant.",
      "Charles A. Barnes and Morrison & Worthington, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "Isham Burnett v. John W. Luttrell.\n1. Criminal Conversation\u2014Burden of Proof .\u2014In actions for criminal conversation, the burden of proving the alleged guilt of the defendant is upon the plaintiff.\n2. Instructions\u2014Refusal to Give, Not Always Error.\u2014 It is not error to refuse an instruction when the principle of law contained in it is embodied in others given.\n3. Evidence\u2014Of Defendants Wealth in Criminal Conversation Cases. \u2014The refusal to admit evidence of the defendant\u2019s wealth in an action for criminal conversation is not reversible error when the jury find that the plaintiff has sustained no damages.\nMemorandum.\u2014Action for c iminal conversation. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.\nHeard in this court at the May term, 1893,\nand affirmed.\nOpinion filed December 4, 1893.\nThe opinion states the case.\nM. T. Layman and R. Yates, attorneys for appellant.\nCharles A. Barnes and Morrison & Worthington, attorneys for appellee."
  },
  "file_name": "0019-01",
  "first_page_order": 15,
  "last_page_order": 19
}