ment of the court. After forty-one suits had been filed all upon a printed form, the railroad company began in the Muhlenberg Circuit Court a suit in equity setting up that a common question was inolved in all the actions and asking that to prevent a multiplicity of suits the circuit. court enjoin the prosecution by the miners of the several actions in the quarterly court and require them all to set up their claims in one action. The circuit court on a hearing of that case refused to grant the injunction and sustained a demurrer to the plaintiff's petition. The plaintiff declined to plead further, and its petition being dismissed, prayed an appeal to this court, which was granted. Thereupon the railroad company filed in this court its petition setting up the above facts and praying that this court issue its writ requiring the judge of the quarterly court to proceed no further in the cases before him, and has entered a motion that the court issue a temporary writ restraining the defendant until the merits may be heard. The case has been submitted on this motion. It is charged in the petition among other things that if no relief is granted 1,600 suits will be filed and judgments entered and that the quarterly court judge is a candidate for re-election, and that the defendants expect and intend to impose upon him to induce him to render a judgment in each of the cases from which no appeal may be taken, and that the applicant will be left without remedy.

We do not deem it proper at this stage of the proceeding to pass upon the merits of the controversy or to intimate any opinion thereon; but it is manifest that if the quarterly court judge is allowed to go on and try out the cases that are now before him, and this court should on the appeal of the injunction suit above referred to, reverse the judgment in that case and hold that the plaintiff was entitled to the relief sought, or any part of it, the reversal would come too late to affect in any way the plaintiffs in the cases referred to. It is estimated that the judgments in all the cases brought and about to be brought would aggregate $50,000, and it seems to us that an extraordinary situation is here presented requiring the interposition of this court. On the other hand, the merits of the controversy should not be determined in this proceeding against the quarterly court judge, and should only be determined in the equity case in which the real parties in interest are before the court. The quarterly court judge has done no wrong. He has done noth

ing more than it was his duty to do, and will be liable to no cost in this proceeding. But that justice may be done, and the rights of the parties intelligently determined, a preliminary writ will issue restraining the quarterly court judge from further proceeding in the cases before him until the appeal in the equity suit above referred to, may be heard and determined, provided the transcript for that appeal is filed with the clerk of this court within sixty days from the making of this order and the appeal is duly prosecuted. This application will be set for hearing with that case at the September term of the court, and will then be finally disposed of.

The motion for the preliminary writ as above indicated is granted.

1.

2.

3.

Miller v. Commonwealth.

(Decided May 30 1913.)

Appeal from Casey Circuit Court.

Evidence-Criminal Law-Seduction.-Where a man indicted for seduction under section 1214 of the Kentucky Statutes, marries the prosecuting witness and the prosecution is thereby sus.pended, but is subsequently renewed after he had deserted his wife, she is a competent witness against him by virtue of the terms of the statute which provides that upon his abandonment of his wife the prosecution "shall be renewed and proceed as though no marriage had taken place."

Criminal Law-Seduction-Subsequent Marriage.-Where a person charged with seduction under section 1214 of the Kentucky Statutes, marries the prosecuting witness and thereby suspends the prosecution, which is subsequently renewed upon his desertion of his wife, the offense remains as it was in the beginning -the seduction of an infant female under the promise of marriage, and two courses of procedure are open to the Commonwealth. One is to continue the indictment on the docket for three years, or to file it away with leave to re-docket upon notice; the other is to dismiss it, and if within three years after the mar riage, cause arises for resuming the prosecution, such as abandonment, to re-indict the defendant.

Criminal Law-Indeterminate Sentence Law.-The indeterminate sentence law applies only where the crime charged is committed after said law became effective.

4. Appeal-Striking Briefs From Record. Where the brief of a party to the appeal is not accompanied by a classification of the questions discussed, with the authorities relied on to sustain

them, as is required by section 3 of Rule 3 of this court, it will be stricken from the record.

C. F. MONTGOMERY for appellant.

JAMES GARNETT, Attorney General and OVERTON S. HOGAN, Assistant Attorney General for appellee.

OPINION OF THE COURT BY JUDGE MILLER-Affirming.

The indictment charged appellant with having seduced a female under twenty-one years of age. Section 1214 of the Kentucky Statutes, reads as follows:

"Whoever shall, under promise of marriage, seduce and have carnal knowledge of any female under twentyone years of age, shall be guilty of a felony and, upon conviction therefor, shall be confined in the penitentiary not less than one year nor more than five years. No prosecution shall be instituted where the person charged shall have married the girl seduced, or offer and be willing to marry her, unless he shall willfully and without such cause as constitutes a statute ground of divorce to the husband, abandon or desert her within three years after the date of the marriage, and any prosecution instituted shall, upon the request of the defendant, be suspended if the party accused marry the girl seduced before final judgment; but the prosecution shall be renewed and proceed as though no marriage had taken place if the accused shall willfully and without such cause as constitutes a statutory ground of divorce to the husband abandon or desert his wife within three years after the marriage. All prosecutions under this section shall be instituted within four years after the commission of the offense."

At the time of the alleged seduction, early in the year 1910, the prosecuting witness, Lillie May Thomas, was about seventeen years of age, and appellant had been paying her attention for two or three years. Their relations continued until about May, 1911, when it became apparent that the prosecuting witness was pregnant; and her father, after learning of her condition, caused a warrant to be issued for appellant. He, however, was not arrested under the warrant; but hearing of it he left the State and did not return until December of that year.

While he was out of the State this indictment was returned, and a child was born to the prosecuting witness. Immediately upon his return in December, 1911, he mar

ried the prosecuting witness, took her and the child with him, to his mother's home, where they remained until January 29, 1912, at which time the wife left, taking her infant with her, and claiming she was compelled to do so by reason of the bad treatment she had received.

So far as the record shows, the indictment was not filed away by the circuit court after the marriage, but remained on the docket; and upon the separation in January, 1912, the prosecution of the case was renewed.

Upon his trial appellant was found guilty and sentenced to four years imprisonment. He appeals. After the separation there was no amendment of, or change in the indictment, but it continued to be merely an indictment charging appellant with the crime of seduction.

The wife was permitted to testify as to the treatment she received from her husband during their marriage, and it is urgently insisted for appellant that under the provision of section 606 of the Civil Code, which provides that "neither a husband nor his wife shall testify while the marriage exists, or afterwards concerning any communication between them during marriage, nor shall either of them testify against the other," the wife was not a competent witness.

But the provision of section 1214, quoted above, which expressly provides that where the accused in such cases marries the prosecuting witness and willfully abandons her within three years, the prosecution shall be renewed "and proceed as though no marriage had taken place," must be treated as a repeal of section 606 of the Civil Code in so far as it applies to cases of this character.

It was plainly the legislative purpose not only to make the wife a competent witness as to the acts constituting the offense before marriage, but as to all acts of the husband within three years after marriage, which might constitute or be evidence of willful desertion or abandonment. The provisions of the section embracing this feature were enacted in an amendment of 1906, and became necessary by reason of a reprehensible practice which had grown up in this class of cases under the old statute, whereby the accused was offered an easy avenue of escape from the consequences of his conduct by going through the form of a marriage with the prosecuting witness, and immediately abandoning her. Looking to the evil intended to be corrected by the amendment it cannot be doubted that it was intended to repeal section 606 of

the Code in so far as it applied to these cases. There was no other way of reaching the evil.

It is insisted, however, that because there was no allegation in the indictment that appellant had deserted his wife within three years after the marriage, a peremptory instruction to find him not guilty should have been given. This claim is based upon the idea that where there is a renewed prosecution under section 1214 after the marriage and desertion, the prosecution is for a new offense separate and distinct from the original seduction, and must, therefore, be set out in the indictment as required by section 122 of the Criminal Code. This view would require a new indictment. It is, however, based upon a misconception of the statute which merely provides in such cases for the suspension of the prosecution if the accused marries the girl before final judgment, and that "the prosecution shall be renewed and proceed as though no marriage had taken place," upon his desertion of her within three years. This plainly refers to the original indictment and prosecution for seduction, which have been merely suspended by the marriage. In other words, the statute does not make the desertion a separate offense, but evidently intended that the original offense might be taken up and prosecuted to judgment if the desertion occurred, without cause, and within three years.

This statute was upheld throughout in Commonwealth v. McNutt, 133 Ky., 702, where McNutt was indicted for seduction after the marriage and subsequent abandonment.

And, in the later case of Commonwealth v. Tobin, 140 Ky., 265, we pointed out the true nature of the offense to be seduction and not abandonment, saying:

"The offense is yet, as it was in the beginning, the seduction of an infant female under promise of marriage. Allowing the accused to marry her is reparation only in event that he abides with her three years (unless ground for divorce mentioned should arise). The period of limitation for prosecution under the statute is now raised to four years, so as to give the prosecution a means of enforcing the criminal statute against the seducer should he within that time bring hiraself again subject to its provisions. It was, therefore, held in McNutt's case that the marriage of the accused and the girl did not alone satisfy the statute; that he must maintain the relation for the required time, or be subject to pun