The State v. Buffington. office must be construed as not embracing members of the legislature; or if its language specifically names, or necessarily includes them, then as to them the act is unconstitutional. The judgment will be affirmed, at the costs of the relator. On the trial of an indictment, a letter written by the defendant to his wife, but not in the custody or control of either of them, or any representative of them, but in the custody and control of the prosecuting witness, is com. petent evidence against the defendant, although a civil statute prohibits husband and wife from testifying to any communication by one to the other during marriage, and a criminal statute extends the provisions in civil cases to the "examination" of witnesses in criminal proceedings. [NFORMATION for carnally defiling a female under eighteen. INFO On the trial the prosecution offered in evidence a letter written by defendant to his wife, confessing that he had committed a grievous offense, without specifying it, expressing remorse, and stating that he had left the State, etc. This was received under objection. The prisoner was convicted, and appealed. R. D. Hartshorne and S. Stillwell, for appellant. T. W. Cogswell and Hutchings & Denison, for the State. VALENTINE, J. This was a criminal prosecution under section 233 of the crimes-and-punishments act; Gen. Stat. 369. The defendant was charged with defiling one Emily Barney, a female person under eighteen years of age, by carnally knowing her while she was confided to his care and protection by her parents. The girl Emily was a sister of the defendant's wife, and their father, Joseph M. Barney, was the prosecuting witness in the case. the trial, the prosecution introduced in evidence, a letter from the defendant to his wife. This was done under the permission of the court, but over the objections of the defendant. The defendant VOL. XXVII-25 On The State v. Buffington. claimed that this letter was a confidential communication from himself to his wife, and therefore that it was not competent evidence against him. The admission of this letter in evidence is the first ruling of the court below of which the defendant now complains. For the purposes of this case, we shall assume that said letter was a confidential communication from the defendant to his wife; that it is what would ordinarily be called a privileged communication, and that it could not have been introduced in evidence in this case or in any other case, by either the husband or the wife, or against either of them, except with the consent of both, so long as the letter remained in the hands or under the control of either of them, or in the hands or under the control of any agent or representative of either of them. We assume this, however, without desiring to express any opinion upon the subject. And with this assumption was the said letter wrongfully introduced in evidence? We think not. It would seem that the letter was in the hands and custody of Joseph M. Barney, the prosecuting witness, at the time it was introduced in evidence. It had previously been sent through the post-office, and by mail, from the defendant to his wife. Barney received it from the post-office, properly directed to the defendant's wife. He delivered it to her, and she, after reading it, returned it to him, and he furnished it to the prosecution to be read in evidence as aforesaid. And there was no evidence tending to show that it was at that time in the custody or under the control of any other person except Joseph M. Barney and the prosecution. It does not appear that either the defendant or his wife had at that time any control over the letter. It is certainly true, that a communication between husband and wife is a priv ileged communication. But it is privileged only while it remains within their custody and control, or while it remains within the custody and control of their agents or representatives, and just so far as it remains within the custody and control of themselves or their agents or representatives. "A private conversation between husband and wife, who thought that no one overheard them, may be testified to by a concealed listener." Commonwealth v. Griffin, 110 Mass. 181. See, also, State v. Center, 35 Vt. 378. This rule also applies as to confidential communications between attorney and client. Hoy v. Morris, 13 Gray, 519; Goddard v. Gardner, 28 Conn. 172; 1 Greenl. Ev., § 239a. With reference to confidential communications between attorney and client, Dr. Wharton uses The State v. Buffington. the following language: "If a legal adviser permits his client's papers to pass out of his hands into those of strangers, or if such papers are in any way extracted from his custody, they may be put in evidence by the party by whom they are held, as against the client. So far has this been pushed, that it has been held that if an attorney permits a witness to see such writings, such witness, not being a clerk of the attorney or legal adviser of the client, may be called to give secondary evidence of the writings, due notice being first given to produce them on the trial." 1 Wharton's Evidence, § 586. See, also, Lloyd v. Mostyn, 10 M. & W.478. Mr. Greenleaf uses the following language (probably with reference to written evidence generally, but immediately following a section concerning "communications between husband and wife," ) to-wit: "It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully; nor will it form an issue to determine that question." 1 Greenl. Ev., § 254a. There is no statute in this State rendering said letter incompetent evidence in a case of this kind. The only statutes supposed to even look in that direction are the following: Criminal Code, section 209: "The provisions of the law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings for contempt to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute." Gen. Stat. 853. Civil Code, section 323 : In no case shall either (the husband or wife) be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward." Laws of 1872, page 335. It will be seen that these statutes do not go to the extent of excluding said letter as evidence. While the Civil Code provides that neither the husband nor wife shall, as a witness, furnish evidence, concerning confidential communications, yet it does not provide that others who may happen to be possessed of such communi The State v. Buffington. cations shall not do so; and while the Criminal Code provides that the provisions of law in civil cases relative to "compelling the attendance and testimony of witnesses," and "their examination," "shall extend to criminal cases," yet it does not provide that the provisions of law in civil cases relating to the competency of witnesses and the competency of evidence shall extend to criminal cases. The State v. Howard, 19 Kans. 509, 510. A certain territorial district judge, once, however, in the early days of Kansas, thought otherwise, and permitted a defendant who was charged in a criminal case with murder in the first degree to testify in his own behalf simply because defendants in civil cases were then (as now) allowed to testify in their own behalf. But whether said district judge would have compelled the defendant in that case to testify against himself, and in favor of the prosecution, at the instance of the prosecution, simply because defendants in civil cases could at that time. be compelled to testify against themselves and in favor of the adverse party, at the instance of the adverse party, is not known. The provision quoted from the Criminal Code is old. It was first enacted in 1855 (Laws of 1855, page 621, § 16), and was re-enacted in 1859 (Laws of 1859, page 209, § 188; Comp. Laws of 1862, page 264, § 188); and again re-enacted in 1868. Gen. Stat., page 853, § 209. And the law making defendants competent witnesses in civil cases, for and against themselves, was passed in Kansas more than twenty years ago. Under section 215 of the Criminal Code, as amended in 1871 (Laws of 1871, page 280, §1), a wife is a competent witness in a criminal case against her husband if she chooses to testify. The State v. McCord, 8 Kans. 232. [Omitting a point of practice.] The judgment of the court below will be affirmed. Judgment affirmed. A house on a lot adjoining the homestead of the owner, in a city, and by him owned and rented to a tenant not in his employ, and occupied exclusively by such tenant and his family, is not exempt under the homestead laws exempting one acre in a city, "with all improvements,"" occupied as a resi dence by the family of the owner," although all the land claimed to be exempt is less than one acre. A CTION to restrain sale of a homestead on execution. The opinion states the facts. The defendant had judgment. L. M. Goddard, for plaintiff. Thomas P. Fenlon and Lucien Baker, for defendants. VALENTINE, J. Ruth A. Ingle recovered a judgment in the District Court of Leavenworth county against John Ashton and Joseph Ashton for the sum of $776.96. An execution was issued on this judgment, and placed in the hands of Percival G. Lowe, sheriff of said county. Lowe by virtue thereof levied upon certain real estate situated in said county, as the property of said John Ashton, and advertised the same for sale. Ashton then commenced this action against said Ingle and Lowe to restrain them from selling said property, and te set aside the levy of said execution. Trial was had in the court below, before the court alone, which trial resulted in a finding and judgment in favor of the defendants and against the plaintiff; and the plaintiff now seeks to have said finding and judgment reversed by this court. The plaintiff claims that said property is a part of his homestead and therefore that it is and was exempt from said judgment, execution. and levy. This is the only question in this case. Before proceeding, however, to discuss this question, we would say that as the finding of the court below was general, and in favor of the defendants, we must presume that every thing necessary to be found in the case was found in favor of the defendants, and against the plaintiff Ashton. And also, where there was conflicting evidence we must |