#### Everell D. Stiles v. Lillian B. Stiles.

1. Adultery—Charges of—Measure of Proof.—Charges of adultery-must be shown by proof of acts and circumstances that convinces the mind by a preponderance of its weight, and not by mere suspicion or conjecture from vague and indefinite circumstances pointing tono specific time, place or act.

2. Same—Presumptions of Innocence.—When adultery is imputed, it must be established by, at least, a preponderance of proof; and when the circumstances relied upon to establish the same, may as well import innocence as guilt, they must be held to import innocence.

Divorce.—Appeal from the Superior Court of Cook County; the Hon. William; G-. Ewing, Judge, presiding. Heard in this court at the October term, 1895.

Affirmed.

Opinion filed February 11, 1896.

William J. Bulger and Walker, Judd & Hawley, attorneys for appellant.

Barnum, Humphrey & Barnum and S. P. Shore, attorneys for appellee.

Mr. Presiding Justice Gary

delivered the opinion of the Court.

The appellant filed a bill against' the appellee, praying a *409divorce on the ground of adultery. She, a cross-bill praying a divorce on the ground of cruelty. On hearing, the court found that neither was sustained by evidence, and dismissed both for want of equity.

A great number of witnesses were examined before the court without a jury, and the question is whether, upon the evidence, either prayer should have been granted.

As to the cross-bill, we need only briefly say that there is no such evidence as requires the reversal of that part of the decree dismissing it.

The original bill is based wholly upon charges of adultery with Herbert P. Crane, committed at Geneva Lake, Chicago, New Orleans and Havana, from the éth day of July, 1892, to the 1st day.of May, 1893 ; but it is clear that there is a mistake in these dates, because the letters of the appellee upon which great stress is laid by the appellant, are three letters written by her to Crane in March, 1892, from Pass Christian, and one undated, but probably written in Chicago the next day after her return to Chicago. The appellee and Crane did pass a good deal of time together at Pass Christian, and New Orleans, which is but two hours ride from Pass Christian, during the latter days of February and the early days of March, 1892. They had there and then, as well as before and after at other places, unobstructed access to each other.

Whatever their feeling toward each other at any time, it was never more intense than then; and as the only expression of that feeling on her part of which there can be no denial, is in those letters, the importance of them to an understanding of the relations of the appellee and Crane can hardly be exaggerated.

And there is another letter from the appellee to the wife of Crane, put in evidence by the appellant, which, though less important, needs to be considered in forming an estimate of the physical, mental, moral and religious character of the woman who is the appellee.

But in considering those letters the strange fact is to be borne in mind that, as the appellant insists, during all the *410winter of 1891-2, Crane was suffering from a venereal disease, and that before the first of June, 1892, he had communicated it to his wife, who was ignorant of the nature of her malady until then informed by the appellee. We must, in considering this appeal, treat as fact whatever the appellant treats as fact, if it makes against him. When and how the appellee acquired knowledge which enabled her to say to the wife of Crane, as the latter testified, “ that was what was the matter with your husband all last winter,” we do not find anywhere stated.

The letters are as follows:

> “ My Dear Bert : I am still ‘ beautiful.’ My lip is not quite as hideous as it was, but my cheek is badly swollen. I am a fright—you know that, however. I found a letter from Everell awaiting me in which he is particular to say that he ‘ will be very angry, indeed, if I go into ¡¡Slew Orleans for the Mardi Gras.’

> “ He says in his letter: ‘ So Fred Boot is expected South; pray how many more % ’ I am determined tokeep my mouth closed tight. All I shall say is that I saw you on Mardi Gras day at the ‘ Pass.’ I beg you to say nothing else, dear. I must tell you again just what a lovely time I had on those two ‘Bed letter days.’ You surely understood just how happy I was; did you not ? Ido not often use the adjective ‘ lovely,’ but I am obliged to just here, so forgive what you might possibly term ‘gushing.’ I am so fortunate, or unfortunate, whichever pleases you, as to find four Chicago women on the train after you left me. Do you remember touching a young lady’s hand who occupied a seat behind me ? Well, she introduced herself to me, or rather told me that she was Will Green’s cousin, and said she met me here last winter. It was a great deal like your friend at the hotel, at the ‘ Pass;’ she had the disadvantage of me. But the young lady who joined her was one of the girls’ pupils from Waukegan. I knew her quite well; then the two Miss Kerr’s were on also. Poor old fellow, what a bit of ‘ hustling ’ you did to get me my seat; you shall have a crown, dear, if I’ve to steal it when his back is' turned. I am not able to go out *411to-day at all but am sitting by the stove with my face tied up very artistically in a blue silk handkerchief. I am consoled with the pleasantest kind of recollections and some jolly good candy. However, I am obliged to fall back on the remembrance of the ‘ Eed letter days ’ oftener than the candies on account of my miserable tooth; it doesn’t hurt my tooth to remember, and it does to nibble candy. I am sorry to send you such a scrawl, dear, but when you remember how ‘ achy ’ I am you will forgive me I know. I am waiting to hear all about your return trip. I hear that Fitzsimmons won the fight. Was it real blogy ’ and nice ? I hope for your sake that it was as delightful as a prize fight can be.

> Yours always,

> Lillian.”

> “ Pass Christian, March 12, 1892.

I am lots better, my dear; I am almost well; my face isn’t swelled a bit, but it pains me just a little now and then to remind me it is there. I have been very stupid ever since you left. The reaction was too great for me. The contrast between this time and that is awful. I just this minute received a telegram from you. I will send a reply to-night; not now, for I am too tired to hunt up a boy, and the telegraph office is so far away, dear. I was out when it was délivered, so didn’t have that chance to reply. I heard today that mama and the girls are coming down here. I am glad for many reasons. I have not been in town since you left, nor do I intend to go at once, either. There is simply nothing to write about. Y esterday I took a long walk, and in the evening played cards. I, however, disgraced myself by growing sleepy, oh, so sleepy, at nine o’clock. I had to excuse myself and retire. If I talk just like a ' nig ’ when I get back you will not refuse to make polite conversation with me, will you ? I know why you did not tell me at once about the giddy monkey charmer—I know why, but I shall not tell, so now there. I wish I might have met a woman with some desire for a monkey; that is, if one was in my possession she could have it without hesitation. What is more beautiful or dearer to one’s heart than two little *412‘ pup alligators ’—nothing nearer the feminine heart unless it is a ' pug doggie.’ I meet on my daily rambles now and then a woman or a man from the windy city. I imagine if I cared to make myself agreeable to them I might have a good time, but somehow I have had my ' best time,’ so I wander on without throwing into my greeting anything save coolness, and that never attracts, does it ? Iam going to tell you something that I hope will please you. When I got your letter saying that it did not please you to hear of my name being used in connection with the Amateur Dramatic Stock Company, I sat down and wrote to Kendall Weston, refusing to appear or allow my name to again have place among them. Does that suit you ?

I am not going to bore you much longer, for I am intensely stupid. For two nights Polly has coughed and kept me awake, so my ideas are clouded and my pen sticks. You will write to me soon, will you not ? Don’t forget just what a lonely being is

Lillian.”

“ Pass Christian, March 16th.

My Dear Bert:—You have no need to excuse your not waiting for a reply before writing again. It is not nice, your theory; I don’t approve of it at all. You know, or I must say it, that even though I were swallowed in a whirlwind of gaiety instead of being ‘ all alone at the Pass,” your, letters would mean quite as much to me. Surely you know that. There are a few things life holds that are not affected by surroundings; those are the bright things in life. What difference does it make whether it is the ‘ Mexican Gulf ’ or the ‘Holland House’ roof that covers you when you are entirely happy ? not much, I imagine. ‘ Peace ’ is sometimes gained only by sacrifice; I have learned that thoroughly. I am glad you had such a good time in New York and I enjoyed hearing your description of the new plays. How tell me honestly, did any of them come up in glory to ‘ Bussell’s Comedians?’ Hothing you can say will make me change my mind concerning it, anyway. So you don’t admire Daly’s way of doing away with an overture. You should *413have said that the three maidens that played looked like triplets, not twins. Three girls can not possibly look like twins, dear. Poor old fellow, you must not play hand ball at such a ‘ black and blue ’ rate; you’ll kill yourself, sure. You must never say or write again that self-reproachful sentence on the first page of your letter. Don’t you dare say that you were not good to me. I won’t have it, there. I am delighted to hear that you have again found yrmr tune, even if you had to go to Foster & Dial’s for it. Do not forget to send me your Mexican address, and while you are in Mexico if you should see one of those little dogs without any hair on them bring it to me. If I can find your train acquaintance I’ll bestow it upon her in place of the coveted monkey. One thing more to scold you about. You must not call yourself names to me; reserve that for the people who can agree with you. I am doing nothing, so I am uninteresting as a historian. I walk a great deal, and read, and see that the youngster does not drown herself, and wear a path to the postoffi.ce looking for mail. I am grateful to you for remembering me so ‘sweetly ’ while in New York; no doubt it will come to-morrow. I feel that by the time you have made out my scrawl, that you have found awaiting you, your patience will have been sorely tried; but never mind, I will do better ' next time,’ and you have always lots of patience with

Lillian.”

“ Saturday Morning.

“I came home alone last night, the train having been reported four hours late. I found that Nora had made everything nice and comfortable for me. I had some little difficulty in getting here, for the springs to the cab broke as we were about half way, and the rest of the journey was anything but comfortable. I was reminded of driving over roots and stumps. This is not what I want to say to you, dearest; it is this: I "went to sleep last night, lulled by the sweetest recollection, and the last promise I made you has been kept and will he forevermore. My reason for writing this to you is this: when dark fancies enter my *414mind one word from you can send them into forgetfulness. And I thought you might care to hear me say I am still yours, L.

“ Tuesday afternoon I am going to be down town; let me hear what time you will care to see me, Monday afternoon’s mail.”

“ Sunday, July 10.

“My Dear Jessie: Would that my pen might borrow sufficient eloquence to paint in words all that is in my heart. Who is there in this world of ours who can tell the best that lies within them, or the worst ? What philosopher can transfer heart thought, soul impressions, upon paper ? I hesitate lest an ill-chosen word may give you pain, or a clumsy sentence touch upon a sensitive chord and cause you to think me at the least indelicate, for what I have to say touches you so closely that I am even now sorrowful in the thought that it must be written, not spoken. It is so much easier to talk to you. I am willing at least to do that which I have long been striving to persuade myself would never be necessary—make an acknowledgment that is woefully reluctant to pass my lips. I have failed in my endeavor to make Bert see his duty. I have ignominiously failed. My girl, I am going to ask you simply to do one thing—believe, whatever happens, that my efforts have been honest ones. I ask you nothing else. I have used what poor words were mine to show him his error; the wrong to his children and all the rest. What my appeals lacked in word glory, they made up in heart eloquence, surely, but it is of no avail; useless to exert myself further. Let me be blunt with you, Jessie. Let me be honest to the point of clear understanding. Whatever I have striven to show Bert was to his advantage. When I have pointed him clearly his path of duty, it was because I wished to see him do right; to do what was worthy; to do what was manly; honorable. All this was not simply because you were my friend or that I was alone interested in his family. It was because I was interested first in Bert. I confess freely he has been my center of interest from the first. My first thought was always a hope of his re-established home *415happiness. For many weeks I forced myself to believe that •much of his bitterness, his unyieldingness, was due to his health: My dear, I am this moment ignorant of the true cause of the first strain upon your domestic relations; but this I do know, that you were not all in all to Bert for a long, long time, much longer than you or 1 have guessed. I spoke to Bert in regard to last summer, and asked him, when he found himself slipping away from his home life, why he did not seek a friend for advice and sympathy, and thus save himself his self-inflicted misery. I said: ‘I would have done all that was in my power to help you.' He said: ‘ You would have had to begin much further back than that to have done any good.’ So you see, my girl, things were going quite as badly—yes, much worse— for you long before I came in action upon the scene.

Bert has become more or less dependent upon me for what pleasure he gets in town. By that, I mean he would rather come here than go elsewhere, and he feels that a drive or the play in my company is at present very essential to his well-being. I don’t think just now I have the heart to forbid him what is to him now his one pleasure while in town. I do not think I ever felt such a supreme sorrow for any one in my life as this day fills my heart for Bert. He is a man of such undecided purpose. He simply utterly refuses to interest himself in other things. He is wretched, ill, unhappy in himself. He needs some consolation, some sympathy. Do you not think so? He is this day fighting against his better self, against his better judgment. Even now, something whispers that what is good will triumph. He needs as much watching and care as a weary, overburdened child. True, he has brought much of his trouble upon himself, but it makes it no easier to be borne. Do not think that in my pity for him that I allow myself to forget your wrongs and sufferings. They are never absent. All I say this for is to tell you that at whatever cost it may be to me, I am unwilling to add one jot to the misery and sorrow that already weighs Bert down, and if in the small ways that I have mentioned I add to his comfort, I am ready to do what I can.

*416Do you understand just how run down and miserable he is % He is positively unfit for anything save rest. If any one could persuade him to remain away from town for a few weeks it would do much for him. I think you had best use your influence, indirectly. I am not writing this to cause you any added uneasiness, but it is so. I am determined never to mention you or your children to Bert again, for I am convinced that if my previous entreaties are worthless, my added prayers would end in nothing. Nothing seems very easy for me just now, but you’ve trouble enough without my contributing any of mine. I do not think Bert intended talking to you to-day, but it is merely surmise. This you must understand; just the moment I feel that in seeing no more of Bert I am doing you any good, or am drawing him nearer to you, just that moment, at the complete sacrifice of anything it might mean to him or me, it shall be done; but until that time I shall do all that lies within my power for his comfort, trusting that it will not take the smallest atom from your well being.

Lillian.”

It is a part of the case of the appellant, of which the proof is as strong as of any other part, that the intercourse of the appellee and Crane, whatever its nature, begun not later than the summer of 1891, and was as criminal then and uninterruptedly thereafter, as it was at New Orleans and Pass Christian during the period to which the letters from the latter place refer. It is also the testimony of the appellant that he and the appellee slept together until the early days of July, 1892. There is no intimation that he became diseased.

Now refraining from comment upon the almost inconceivable repugnance with which a woman must shrink from being one flesh with such corruption, is it to be believed that Crane was so diseased and contemporaneously was in adulterous intercourse with the appellee, and that without injurious consequences to the appellant ?

Now to recur to the letters from Pass Christian, and the one next following.

They manifest a very great affection for Crane, but not *417a syllable of passion is in them. They must have been written with the expectation that they would be read only by him, and yet there is no reference to any physical contact, remembered with pleasure or regret, or looked forward to with hope.

Lovers—innocent lovers as well as guilty—sprinkle their correspondence with compliments, yearnings for meetings, and, not seldom, with kisses sent or desired.

Much more emphatic are the letters óf guilty lovers. In these letters not a regret for his absence, or wish for his presence, unless in the postscript of the one dated Saturday Morning,” is expressed. If her age is anywhere mentioned, it has escaped my attention, but it appears that the appellant was twenty-four years old when he and the appellee were married in 1884, She, probably, was younger. After seven years had elapsed, she was doubtless still young. Had appetite been the basis of the tie between Crane and herself, could she have avoided some allusion to its gratification ?

Her letter to the wife of Crane is a very extraordinary epistle to be addressed to a neglected wife by a woman consoling the husband of that wife.

Judged by her letters the appellee, if innocent, seems to have some very peculiar characteristics. Of love, as a passion, those letters show no sign. They do indicate that she believed, or desired the reader to believe, that while capable of graceful trilling, yet her nature was very intense. They also indicate that she may have had some vanity as to her use of language, and power of expression. But they do not show any sense of moral or religious obligation to do, or refrain from doing anything, simply because it is right or wrong.

In the letter to the wife of Crane, she treats as his duty, the doing what was worthy, manly, honorable.

That there is in the record abundant evidence of clandestine meetings, upon which a finding of adultery might be justified if it stood alone, may be conceded; and yet it may be that it was not “ adultery but adulteration.”

The decree is affirmed.