dissenting.
I am unable to concur with my associates, for the reason that there is not, in my opinion, sufficient evidence to sustain a judgment of conviction.
Whatever view may be taken of the conduct of the defendant and their relations prior to the time Mrs. Stiles moved to Kane county, there is no evidence that they lived in an open state of adultery there, or committed in that county a single act of adultery. Not one of the witnesses for the State, as to occurrences in Kane county, testified to an adulterous act or to anything like adulterous behavior or indecent familiarity between them. Upon the contrary the uncontradicted testimony of witnesses living at St. Charles, and so situated as to observe their daily conduct, was that their demeanor toward each other was entirely proper and not of a character to even excite suspicion of illicit relations.
The most that can be said of the evidence upon this branch of the case is that there was opportunity for illicit intercourse between the parties at St. Charles. The very gravamen of the charge is that the defendants lived together in Kane county in an adulterous state so as to scandalize and disgrace the community there. To my mind it is clear that the charge is not proven beyond a reasonable doubt by merely showing acts tending to prove adultery between the parties prior to the time of moving to Kane county and showing opportunities merely to commit adultery in that county. To convict under such proof appears to me to be convicting of crime upon mere suspicion.