COMMONWEALTH V. HIGHTOWER. (Court of Appeals of Kentucky. March 10, 1915.) Appeal from Circuit Court, Todd County. A. L. Hightower was convicted of the of fense of carrying a concealed deadly weapon. From an order of the circuit court dismissing the action, the Commonwealth appeals. Affirmed. Jas. Garnett, Atty. Gen., for the Commonwealth. Petrie & Standard, of Elkton, for appellee.

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MILLER, C. J. The appellee, A. L. Hightower, was tried before the county court judge of Todd county on September 23, 1914, upon a warrant which charged him with the offense of having concealed about or upon his person, a deadly weapon. Jurisdiction to try the appellee under the warrant was attempted to be exercised under the act of the General Assembly entitled "An act fixing the jurisdiction of county judges and justices of the peace in criminal cases, approved March 19, 1914 (Acts 1914, p. 141). The trial resulted in a conviction and fine of $50, and imprisonment in the county jail for 10 days. From that judgment an appeal was prosecuted to the Todd circuit court, where an order was made on December 10, 1914, dismissing the action, on the ground that the judgment and proceedings in the county court were null and void. From that order this appeal is prosecuted, for the purpose of determining the jurisdiction of county court judges in criminal cases under the of 1914, supra. The act of 1914 larged the jurisdiction of county court judges in criminal cases, by giving them concurrent jurisdiction with circuit courts of all misdemeanors, the punishment of which exceeds a fine of $100 and imprisonment for 50 days. It is conceded that if the act of 1914 did not enlarge that jurisdiction, the case before us was not within the jurisdiction of the county judge. In the late case of Kilbourn, Judge, v. Chapman, 163 Ky. 136, 173 S. W. 322, decided since this case was tried below, said act was held unconstitutional, because it violated section 141 of the Constitution requiring uniform ity of jurisdiction for all the county courts of the state, in that it excepted from the provisions of the act counties having a continuous session of their respective circuit courts. The question presented by this appeal is concluded by the ruling in that case. It necessarily follows that the county court did not have jurisdiction to try the case, and that the judgment of the circuit court was right. Judgment af

firmed.

YOUNG V. YOUNG. (No. 13,793.) (St. Louis Court of Appeals. Missouri. Feb. 2, 1915.) Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge. Action by Frank R. Young against Carrie Young. From a judgment for defendant, plaintiff appeals. Affirmed. Joseph Barton, of St. Louis, for appellant. Zachritz & Zachritz, of St. Louis, for respondent.

ALLEN, J. This is an action for divorce. The suit was instituted by the husband, based

upon indignities alleged to have been offered to him by the wife. The latter denied the allegations of the petition respecting the said alleged indignities, and filed a cross-bill, praying for a divorce upon the ground of indignities, and of cruel and barbarous treatment as well. The court below found in favor of the defendant on her cross-bill, and against the plaintiff on his petition, dismissing the latter, and awarded defendant alimony, and the case is here upon plaintiff's appeal. Plaintiff and defendant were married October 5, 1910, in East St. Louis, Ill., and the final separation occurred December 29, 1911, in the city of St. Louis, where they had resided during the greater portion of the intervening time. In the main the acts alleged to have constituted the indignities relied upon by plaintiff, and said to have rendered his condition intolerable, were that the defendant was in the habit of applying uncomplimentary epithets to him, and of sulking and pouting over trivial matters; that she refused to perform ordinary household duties, habitually accused plaintiff of stinginess and of infidelity to her, gamble for money," and constantly threatened to leave plaintiff, without cause; that she did, without cause, abandon plaintiff, for certain periods, upon two occasions prior to the final separation, and finally left and abandoned him, without cause, to go on the vaudeville stage. Defendant in her cross-bill alleges that plaintiff was possessed of a violent temper, and that in anger he frequently cursed and abused her, and applied vile epithets toward her, and upon one occasion in a fit of anger struck her with his fist; that he failed and refused to provide her with necessaries; and that upon the ocand assaulted her, without cause, by reason casion of the final separation he cursed, abused, whereof she left and refused to return to him. As to the allegations of plaintiff's petition, could constitute indignities under the statute, there was no proof of the acts alleged, which His testibeyond the testimony of plaintiff. mony, in support of the essential averments of his petition, which does not impress us greatly, is in no way corroborated by that of the witnesses called to testify in his behalf. The testimony of defendant, on the other hand, in support of the allegations of her cross-bill, is, in many respects at least, fully corroborated by We have the testimony of other witnesses. carefully read the entire testimony contained in the record, the details of which it would serve no useful purpose to here relate. And we the learned trial judge should not be disturb are convinced that the conclusions reached by ed. Upon the record before us we have no hesitation in saying that plaintiff failed to make out a case entitling him to a decree in his favor; and we think that the evidence adduced in support of defendant's cross-bill sufficed to show a course of conduct on plaintiff's part constituting "indignities" within the meaning of the statute, and to justify the finding that defendant is the innocent and injured party. No point is made respecting the amount of the alimony allowed defendant, and the matter need not be discussed. The judgment is affirmed. REYNOLDS, P. J., and NORTONI, J., con

cur.

MCNEILL v. STATE. (Supreme Court of Arkansas. March 22, 1915.) For majority opinion, see 173 S. W. 826.

HART, J. (dissenting). It will be noted that the letters written by the defendant to his wife, and delivered by her to her brother for the purpose of being given to the prosecuting attorney to be used as evidence in this case, have been held competent on the authority of Hammons v. State, 73 Ark. 495, 84 S. W. 718, 68 L. R. A. 234, 108 Am. St. Rep. 66, 3 Ann. Cas. 912. The court says in effect that where letters fall into the hands of a third person, without being taken forcibly from the wife, or obtained without any other sort of compulsion, they are competent evidence against the husband. In my judgment this is to overrule Ward v. State, 70 Ark. 204, 66 S. W. 926, and to greatly extend the doctrine in Hammons v. State, supra. In the Ward Case, a letter was taken from the wife after it was delivered to her, and the court held that it was not admissible in evidence against the husband. In the Hammons Case, a letter was intercepted before it reached the wife, and the letter was admitted in evidence; but the court expressly disclaimed any intention of overruling the Ward Case. The court went no further in the Hammons Case than to hold that a letter written by a husband to his wife may be offered in evidence against the husband, when not in the custody of the wife or control of her agent or representative, but is in the control of a third person without her connivance or voluntary act. In the case before us the court had held that a wife may voluntarily and with hostile intent deliver a letter written to her by her husband to a third person, for the purpose of having it introduced in evidence against the husband. It is true some courts have held that, when papers or letters are offered in evidence, the court can take no notice of how they were obtained, because to try that question would be to permit a collateral issue to be tried; but it will be noted that our court in the Ward and Hammons Cases has not adopted that view, and the decision in the present case does not rest on that ground. The rule which protects confidential communications of this nature was established on grounds of public policy, for the purpose of encouraging mutual confidence between husband and wife, and thereby promoting the happiness of the married state. To this end the common law provides that all communications between husband and wife which are of a confidential nature shall be kept inviolate. In the Ward and Hammons Cases it was recognized that this provision extended to written as well as oral communications. It is obvious that the present decision limits the protection to oral communications and to such written communications as are taken from the spouse by force; for the spouse having possession of the letters can always deliver them to a third person for the purpose of being used in evidence against the spouse who wrote them, and thus by his or her voluntary act defeat the very purpose of the rule. That the court did not intend that such construction be placed upon its opinion in the Hammons Case is evident from the language contained in the opinion. Stress is laid several times in the course of the opinion on the fact that there was no evidence connecting Mrs. Hammons in any way with the delivery of the letter to the witness. I think, also, that the language of the dissenting opinion bears out the views I have here expressed. Otherwise, in discussing the difference between the Ward and Hammons Cases, why say: "The fact that the letter was forcibly taken from the wife, on the one hand, and that it was intercepted before it reached the wife, on the other hand, should not be a controlling distinction." The court also held that the letters were competent, because it is inconsistent for the defendant to claim the right to exclude the letters to Estella

Williams on the ground that she is his wife, and at the same time claim that he had not been married to her. The defendant entered a plea of not guilty, and it then devolved upon that he was guilty. the state to prove beyond a reasonable doubt It was not incumbent upon the defendant to introduce any testimony whatever. One of the essential elements of the offense was that he should have a wife living at the time he married another. It was incumbent upon the state to prove that he had a living wife when he married the second time, and this proof should have been made by competent testimony. Therefore, if I am correct in holding that the letters written to his first wife could not be used in testimony against him, the defendant would not be bound by any rule of estoppel from objecting to the introduction of such letters.

KING COUNTY v. MARTIN. (No. 8044.) (Court of Civil Appeals of Texas. Ft. Worth. Jan. 9, 1915.) On motion for rehearing. Overruled. For former opinion, see 173 S. W. 960.

CONNER, C. J. Appellant's motion for rehearing merely presents questions that were presented on the original hearing, without anything new being urged in its support. The motion will therefore be overruled without discussion. Appellee, however, while concurring in the final conclusion originally reached, insists that in the interest of uniformity of decision we should modify our conclusion that, under the general objection that the evidence of the usual rate of interest in sales of lands by private persons was "immaterial," we could not consider the objection that "the conditions were not shown to be similar." The insistence is that, while the general rule is as we applied it where evidence is admitted over a general objection, a distinction is to be made in instances where evidence is excluded on such objection. The authorities seem to support the distinction in cases where neither the trial court nor opposing counsel call for specific objection at the time of the exclusion of the testimony. See 5 Jones on Evidence, 377 et 894; Mine & Smelter Supply Co. v. Park & Lacy Co., 107 Fed. 881, 47 C. C. A. 34; Tooley v. Bacon, 70 N. Y. 34; Hurlbut v. Hall, 39 Neb. 889, 58 N. W. 538; Storms v. Lemon, 7 Ind. App. 435, 34 N. E. 644; Adams v. Southern R. R. Co., 166 Ala. 449, 51 South. 987; Rosenberg v. Sheahan, 148 Wis. 92, 133 N. W. 645; Flanagan v. Womack & Perry, 54 Tex. 45. In the case of Tooley v. Bacon, supra, the court say: "Where evidence is excluded upon a mere general objection, the ruling will be upheld upon appeal if any ground in fact existed for the exclusion; it will be assumed, in the absence of any request on the part of the opposing party or the court, to make the objection more definite, that it was understood that the ruling was placed upon the right ground." In the Texas case just cited, the court, among other things, said: "The court may in its discretion refuse to entertain an objection to a question propounded to a witness unless the ground of objection be stated; but. should a general objection be entertained and correctly sustained, it would be no ground for reversal, no substantial error having been committed." In the present case it is by no means clear that conditions were shown to be similar. Nor does it appear that either court or opposing counsel requested a more specific objection to the testimony referred to than was made. Had such request been made, the objec tion that conditions were not shown to be similar might have been obviated. In the absence of such request, however, we should perhaps assume, as stated in the quotation from the New York decision, that it was understood at the time of the exclusion of the evidence relating to the interest demanded in sales of lands by private parties that the ruling was placed upon

TEXAS & P. RY. CO. v. CAVE et al. (No. 8033.) (Court of Civil Appeals of Texas. Ft. Worth. Dec. 12, 1914.) Dissenting opinion. For majority opinion, see 173 S. W. 988. CONNER, C. J. (dissenting). I feel unwilling to deny any litigant a hearing on the merits of his case on the grounds herein presented. The good faith of counsel claiming the execution of the original agreement to waive the filing of his briefs in the court below is unassailed, and is manifest, I think, from the record. He asserted this claim in letters to counsel now denying the agreement, to which he received no answer, as early as June 1, 1914, and he states that he did not know with certainty until about September 13, 1914, that counsel for defendant in error would refuse to execute another, or substituted, agreement. Afterwards, on October 10th, the counsel for plaintiff in error filed in this court his verified motion to file his briefs, with copies of same accompanying the motion, but which motion we passed, to be considered with the merits of the case. The motion shows, and it is not denied, that as early as about May 12, 1914, a copy of plaintiff in error's brief was mailed to and received by counsel for defendant in error. This brief was deficient in the citation of authorities, and perhaps in other respects, and later, to wit, on October 5, 1914, as shown by the motion, an amended or corrected brief, substantially as now presented 173 S.W.-76

in error. This case was not submitted until the 24th day of October, 1914, and in the motion to dismiss the appeal, filed on the same day, it is not even suggested that counsel for defendant in error have not had ample time to answer the brief presented for filing, or even that they desire to yet do so. Under such circumstances, it seems to me, we should permit the briefs presented to be filed, and determine whether there is any merit in plaintiff in error's appeal. To refuse to do so, I think, is to sacrifice substance for form. Counsel for the respective parties live in counties distant from each other, and the trouble seems to be at worst one of forgetfulness on the part of one or the other of the contending sides, mixed possibly with some negligence on the part of counsel for plaintiff in error in failing to not earlier present his motion to file his briefs. But the ground of the motion to dismiss at best is one of mere form, and, as said in the case of Hunt v. Glasscock, 27 Tex. Civ. App. 322, 65 S. W. 209: "The object of the law was to afford the appellee, or defendant in error, a convenient opportunity and sufficient time to prepare his brief in answer to that of his adversary. We do not think that it was the purpose of the Legislature to authorize a dismissal of the appeal on account of every slight departure from the rule. It was doubtless intended that, in case of a failure to comply with the provisions, the court should give such directions to the case as to secure to the appellee the substantial benefits intended to be secured to him by the act. The Legislature contemplated no greater penalty when there was neither a willful nor grossly negligent infraction of the rule." See, also, S. A. & A. P. Ry. v. Holden, 93 Tex. 211, 54 S. W. 751; I. & G. N. R. Co. v. Walters, 161 S. W. 916.