delivered the opinion of the Court:
Appellant filed a bill in the McDonough circuit court against appellee to obtain a divorce. The bill alleged wilful desertion, without any reasonable cause, for the space of more than two years. Appellee answered, and filed a cross bill, setting up, as a justification, extreme and repeated cruelty and adultery on the part of the husband. A replication was filed to the answer, and an answer to the cross bill, denying the .charge of cruelty and adultery. A trial was had resulting in favor of defendant, whereupon the court dismissed the original bill, and, under the cross bill, decreed her an annual allowance of three hundred dollars, payable semi-annually, as a separate maintenance. Complainant has appealed to this court and asks a reversal upon the ground that the evidence does not sustain the verdict and decree.
We have examined the evidence with much care, and are constrained to hold that the objection is well taken. It is not contested that appellee absented herself from the home of appellant for more than two years before the original bill was filed, and it devolved upon her to show, by a preponderance of evidence, that it was justified. While appellee testifies to a-number of acts of cruelty, extending over a series of 'twenty-seven years, her story seems to be extremely improbable. That she would have remained with appellant, and make no complaint, or even communicate to any person in the neighborhood, the fact that appellant had, on more than one occasion, administered to her poison, and had attempted to shoot her and stealthily attempted to cut her throat, and not at. the time have left him and communicated the fact to the neighbors, is so extremely improbable that we can not give it credence unless it was supported by corroborating evidence. It has every appearance of the vagaries of a crazed or distempered imagination.
Again, these charges are totally denied by appellant. He is explicit and positive in his contradiction of each and all of these charges. When she says, that he, while riding in a carriage with her, attempted to drive over a precipice, or such a place as would have produced her death, she does not seem to remember that it involved the destruction of his own life. As to all of these charges we think them so extremely improbable that, uncontradicted, we could not hold that they would have justified the decree, as some of them are unreasonable, and her conduct seems to contradict all of them. Had such attempts been made upon her life she would, undoubtedly, have left appellant and have made it known to her friends, and commenced legal proceedings. That her imagination is diseased seems to be more than probable. Her account of being choked in her sleep until life was almost extinct, and not be aware of the fact until she, next day, saw the prints of fingers on her neck is improbable. Such evidence seems to be entirely worthless.
As to the difficulty that occurred at the time when the separation took place, it appears that appellant was highly excited, and was acting under great provocation. When he was so wantonly insulted by appellee it was but natural that he should lose his temper, and he may not have restrained it, and have avoided its energetic manifestations to the extent that he should, and others might have done. But when he simply informed appellee that he did not want her to sell any more honey, for her to reply that he lied, was well calculated to throw the coolest and best balanced temper off its balance. So far as we can see, the insult was unprovoked, unexpected, and entirely wanton. And it was not to be expected that appellant would remain calm under such a provocation. He may have made demonstrations that were violent, and even improper, in a man of strong will and self-government, but when the weakness of human nature is considered, we are not prepared to hold, that, under the provocation, it was extreme cruelty. He did no personal violence to appellee, although he made demonstrations that may have induced her to believe she was in danger; but it must be remembered that she provoked it, and seems to have been seeking to induce such action as would afford an excuse for a separation, as such a thing had been previously spoken of by the parties.
But in this altercation, appellee does not pretend that she received any personal injury, but says he struck at, and attempted to kick her. This, appellant denies, in the most emphatic terms, as v'ell as all other specific charges. Again, persons who lived in the family all concur in saying, so far as they saw, he treated her kindly and properly. His neighbors speak well of him as a man of good disposition, a good citizen, and a truthful man. It would be strange, if he had treated appellee as she claims, that their children, persons living in the family, and their neighbors, with whom they had lived for years, never had discovered the fact.
To have been justified in leaving her husband, his conduct should have been such, as if continued for the statutory period, would have authorized the decreeing of a divorce. In the attempt to show such facts we think appellee has wholly failed in her proof. That an altercation occurred is true, but it was sought and produced by her own acts. Appellee having deserted appellant, without reasonable cause, for the space of more than two years before the bill was filed, he was entitled to a divorce, unless it is shown that he was guilty of adultery, as charged in the cross bill and answer.
There was much testimony taken to prove that appellant was guilty of adultery with different women. In this we think there was an entire failure. It is true, that after appellee left, appellant employed a widow to keep house for him, but as a matter of precaution against scandal he also kept in the house a hired girl during the time. And no improper acts between them were proved. Much testimony was taken that, at most, could only raise a suspicion. An attempt was made to show that this woman was not virtuous, but her character seems to have been sustained by those who were most intimately acquainted with her, and who lived in her neighborhood.
But had the evidence shown that her character was not good, that of itself would not have proved the charge. The mere fact that appellant employed a housekeeper, which was rendered necessary to enable him to carry on his farm by ap'pellee’s desertion, does not prove adultery. Nor do we find other evidence in this record from which it can be reasonably inferred. The fact that he employed a man and his wife to come to his house a day or two, although the wife’s character for virtue may not have been good, does not prove adultery by appellant. The labor they were hired to perform seems to have been necessary and proper, and until shown to have been for improper purposes, should not fix the charge of adultery on appellant.
The evidence of the general character of the widow he employed, even had it shown that it was bad, was not admissible to prove adultery. Nor was the evidence introduced for the purpose of showing that appellant’s character for virtue' was not good. This is a specific charge, and must be proved, like any other fact, by either positive or circumstantial evidence, and not by hearsay or mere rumor and gossip of the neighborhood. If guilty, the charge must be established by evidence of acts and circumstances that convinces the understanding.
Nor do we see that the fact that he may have, during the period his wife was absent, visited, on one or two occasions, female friends, or at one or more times been seen riding in a carriage with females, prove the charge. No attendant circumstances indicate- that he acted improperly on those occasions, and we can not infer adultery from them. Nor do we see, from the entire evidence in the record, that the charge is estáblished. It should be proved, and by evidence that is legitimate and convinces the mind by a preponderance of its weight, and not by mere suspicion or conjecture from vague, indefinite circumstances, pointing to no specific time, place, or act. Such loose evidence can not, even if it were admissible, prove the charge; and there is no'legitimate evidence upon which to base the conclusion that he committed adultery.
We now cometo consider the instructions. Appellant asked and the court refused to give this instruction:
“ The jury are also further instructed, that the law does not allow the jury to presume the adultery of the complainant where the facts or circumstances relied upon to establish the same may be as well attributed to an innocent intent or motive as a guilty one.”
No objection is perceived to this instruction. It announces a correct rule of law, and is free from even verbal criticism, unless the word “if” should be substituted for the word “ where.” But it is the undoubted rule of law, that where immorality or wrong is imputed, it must be established by at least a preponderance of proof. And when the evidence may as well establish innocence as guilt, the jury should always adopt the former rather than the latter hypothesis ; and the same is manifestly true where a violation of the marital rights is charged by the commission of an act that degrades the parties and inflicts great wrong upon society. When such a charge is made it involves the character of both parties to the offense, and the character of the woman to whom it is of priceless value; she should not be found guilty on evidence which may as well import innocence as guilt. All persons are presumed to be innocent until proved guilty, and to hold that act, which may as reasonably be attributed to an innocent intent, as a guilty act, would impair if it did not abrogate the rule; it would authorize the finding the existence of a fact on evidence that was in equipoise. It was error to refuse this instruction.
The sixth of defendant’s instructions should have been modified. In the previous instructions the court very properly told the jury what acts on the part of the husband would constitute reasonable cause for appellee’s leaving her husband; but in the latter clause of the sixth instruction, the acts and circumstances which would constitute a justification, are left to the determination of the jury. Now we can not see which the jury followed; and we can see that if they followed the latter, it must have operated to appellant’s prejudice, and accounts for the verdict which they returned. In this there was error; for the errors indicated the decree of the court below is reversed and the cause remanded for further proceedings, in conformity to this opinion.
Decree reversed.