This is an action for alimony and divorce brought by plaintiff in error in the district court of Oklahoma county. Plaintiff filed her petition charging the defendant with having committed adultery. Defendant answered by general denial and cross-petition charging plaintiff with adultery, and praying for divorce. The trial court found both parties to be at fault and denied the prayer of both petitions. From that order the defendant did not prosecute an appeal. Plaintiff appealed and brings the case here. The trial court having found the defendant was not entitled to divorce, and the defendant not having appealed, we are not concerned with that branch of the case. The cross-petition filed by defendant charging plaintiff with adultery names Dr. E.M. Seiffert as co-respondent. The trial court made no findings of fact.
The evidence offered by the defendant in support of his charge of adultery was his own testimony that plaintiff admitted to having had improper relations with Dr. Seiffert, and a purported leaf of the register of the Atlas Hotel, Milwaukee, on which appeared the entry, Dr. E.M. Seiffert and wife, Guthrie, Okla." His testimony as to the admission was contradicted by plaintiff, she denying she ever had any such conversation, and claiming that the condition of her health at the time rendered such relation impossible. The leaf from the hotel register was admitted over the plaintiff's objection. The only evidence offered to identify the leaf from the hotel register was the testimony of the attorney for the defendant, the substance of which was that he received the register from the proprietor of the hotel something like a year after the alleged date. There was no proof as to the name of the proprietor or that he was known to the attorney; as to who had the custody of this register prior to its being offered in evidence; that the same was genuine; had remained unchanged; that the Hotel Atlas was being conducted on the date mentioned, of that the purported register red in fact been used as a register of said hotel. The only testimony offered to prove that the inscription on the register was made by Dr. Seiffert was the testimony of defendant, who identified it as the doctor's handwriting. This witness also identified a bank check as the handwriting of Dr. Seiffert, and from the resemblance of the two, the court admitted the writing on the register as that of the doctor. There was no evidence offered to prove that Dr. Seiffert, or any one posing under that name, was in fact at the Atlas Hotel on the date mentioned.
The court erred in admitting the page from the register without its having been properly identified, by competent testimony, as the register kept of the Atlas Hotel on the date mentioned, and that it was in the same condition when offered that it was on the date of registration. But, had the register been properly identified, that alone would not be sufficient to prove the plain-tiff guilty of adultery. There was no evidence offered to prove that she was the person referred to as his wife, and occupying the room with Dr. Seiffert. On the contrary, the plaintiff testified positively that she was not there. The only evidence offered which even tended to prove plaintiff was in Milwaukee on that date was a letter written with lead pencil to another woman, purporting to have been written from Milwaukee. This letter plaintiff admitted appeared to be her writing, but after having read the letter she denied positively that she wrote it. The general rule is that it is not necessary to prove the direct fact of adultery; this fact may be proven by circumstances. But the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion of guilt. 2 Greenleaf on Ev. (16th Ed.) § 40. The party relying on the charge of adultery has the burden of proving it by a fair preponderance of the evidence. In proving adultery by circum-stances two facts must be established, a *Page 47 criminal disposition or desire in the mind of both the defendant and the particeps criminis, and an opportunity to commit the crime. 2 Bish. on Mar. Div. § 619; Black v. Black,30 N.J. Eq. 228.
From an examination of the record it appears there was not sufficient competent evidence offered on the part of the defendant to sustain the charge of adultery made against the plaintiff.
The trial court, having found the defendant was not without fault, erred in not awarding plaintiff alimony. Under section 4966, Rev. Laws 1910, the court was authorized to award alimony to plaintiff, notwithstanding the finding that both parties were in fault. When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, but may for good cause shown make such order as may be proper for an equitable division of property. From the proof it appears that plaintiff was an industrious, hard working women during the 19 years she lived with the defendant; that she assisted in doing the work while they were living on a farm, and kept the books and assisted in the other work about his grocery store when they were living in the city of Guthrie; that she was entirely without means, and that the defendant had recently inherited considerable property from his father's estate. The defendant had the benefit of the plaintiff's services during the several years they lived together as husband and wife. In these circumstances the court should have awarded her a reasonable sum as permanent alimony. This court, in the case of Pauly v. Pauly, 14 Okla. 1, 76 P. 148, sustained an allowance of permanent alimony, when the husband, without fault, was granted an absolute divorce for the wife's adultery. According to the testimony of the defendant he owns a farm in the state of Illinois of the value of $32,000 with a mortgage indebtedness of $6,500. The trial court should have granted to the plaintiff permanent alimony for at least a third of the net value of the defendant's farm.
The judgment of the trial court, in so far as it denied the prayer of the defendant, is affirmed, but is reversed so far as it denied the prayer of the plaintiff for divorce and alimony. The cause is remanded with directions to enter a decree granting plaintiff's prayer for absolute divorce, and to award her as permanent alimony the sum of $8,500, and to render judgment against the defendant, Eugene Hartshorn, for said sum of $8,500 and the cost of the action.
All the Justices concur, except THACKER, J., who dissents.