#### E. M. Antle v. A. B. Craven, Appellant.

Evidences relevance and admissibility: *Criminal conversation.*1q an action for damages for criminal conversation with plaintiff’s wife, a witness on behalf of plaintiff testified that she saw a man and a woman in the road one night near some willow hedge ; that 1 she did not know them ; that the woman came towards the town in which plaintiff's wife resided, and that the man went in the other direction ; and that defendant’s house was on the same side *347of the road where the man turned off, but quite a distance from there. Held, that the testimony was inadmissible.

Motion to strike : *Practice.*The ruling of the lower court, in overruling a motion to strike certain testimony, cannot be justified on the ground that the motion was to strike all the testimony, 3 while soma of it was relevant and material, where the portion claimed to be relevant and material was a mere incident of the testimony, and w.as undisputed.

*Appeal from Jasper District Court.*— HoN. BeN McCoy, Judge.

Tuesday, October 17, 1899.

Dakages are claimed in this action for criminal conversation with plaintiff’s wife. There was a trial to jury. Verdict, and judgment for plaintiff. Defendant appeals.—

Reversed.

*A. M. liarrah*for appellant.

*H. S. Winsloiv*for appellee.

WateemaN, J.

The evidence on plaintiff’s part was wholly circumstantial. It consisted of a showing of acquaintanceship, association, and acts of familiarity between defendant and plaintiff’s wife, and, finally, of their being found together alone in defendant’s store about midnight. 1 Defendant was a merchant in the town of Kellogg, but lived a short distance in the country. A witness, Mrs. Carlson, called by plaintiff, testified as follows: “I live hind of east of Kellogg. I know where Mr. Craven’s place is. I sometimes passed it coming to Kellogg. I remember a little bridge on a little creek near Kellogg, on the way to Craven’s place. I crossed that bridge going home one evening last fall. I saw a man and woman in the road. I suppose it was somewhere near I o’clock. It was dark, — very dark. I saw something pass by my horse’s head, and he was so frightened that I had to take care of the *348horse. There was a man and a woman. The woman came towards .Kellogg, and the man went in the other direction. I had crossed the bridge. The woman had not crossed it when I came to it. She was not running. The man, did not run until he turned off the road. I suppose I might have told who the man was if I hadn’t had to hold thei horse, and didn’t look. I couldn’t tell whether it was a tall man. I did not particularly notice the size of the woman. She was not fleshy. I could not tell who the parties were, as the horses took my attention so I didn’t see them. They were not very far away when I first saw them. There were willows near where I saw them, — willow hedge. The hedge is only on one side of the road. I did not pass the man. He turned off, and went into the willows. Mr. Craven’s house is on the same side of the road where the man turned off, but quite a ways further north.” Defendant moved to'strike this evidence. The motion was overruled.

It needs no argument to show that this testimony, in relation to the conduct of two unknown persons, was inad-misible against defendant. Plaintiff makes no claim that the evidence, if inadmissible, was without prejudice;'nor do we see how such a claim could consistently be made, in view of other testimony in the case. It was shown that plaintiff and his wife lived for a time on a street through which defendant passed in going to and from his business. There was evidence that plaintiff’s wife, on many occasions, went out in the morning towards defendant’s home, and walked with him some distance, on the way to his place of business. There was also testimony tending to show that, on another occasion than the one testified to' by Mrs. Carlson, the defendant was seen near the place she speaks of, in company with Mrs. Antle. When the court refused to strike the evidence of Mrs. Carlson, the jury must have felt warranted in considering it, and they could have given it no application which was not prejudicial to defendant. The conduct of these parties was somewhat suspicious. It had no place in the *349case, unless tbe jury could assume that tbe man and woman seen were defendant and Mrs. Antle. For it to so assume was obviously without- justification, for tbe only evidence relating to this occurrence is wbat we bave set out.

Appellee seeks to justify tbe court’s ruling in tbis way: Tbe motion was to strike all tbe testimony of tbe witness. If any of it was. admissible, tbe motion was properly *2*
      **overruled. It is then insisted that wbat was said about the bridge, tbe willow hedge, and tbe location of defendant’s bouse upon tbis road was both relevant and material. It is apparent that these facts are but incidents of tbe witness’ testimony. They were mentioned only to' give connection to her story, the pith and point of which was her seeing tbe two people together. Tbe location of tbe bridge, the hedge, and defendant’s house were not disputed facts in tbe case. As well might it be said that tbe name of tbe witness was relevant and material, and, as tbe motion to strike included tbe portion of her testimony in which her name was given, tbe court’s ruling should be sustained. Such reasoning does not commend itself to serious consideration.

II. None of tbe other errors assigned are likely to again arise. They relate principally to misconduct of counsel and of tbe jury. For tbe error mentioned, tbe judgment will be Reversed.