State v. White. 239; 25 Am. Rep. 87. The court here say: "As there is danger that the jury, knowing that the law now permits a defendant to testify, may draw inferences against him from his omission to do so, his counsel may properly, in addressing the jury, insist and enlarge upon his constitutional and legal right in this respect. When the counsel for the defendant in the present case went further, and referred to his own opinion and practice upon the subject, and to what he supposed to have taken place in other cases, he might well have been checked by the court. But the absolute exemption, secured to the defendants by the Constitution and laws, from being compelled to testify, and from having their omission to do so used in any way to their detriment, could not be affected by superfluous or irregular suggestions of their counsel in the heat of argument. That exemption could only be waived by each defendant's own election to avail himself of the statute, and to go upon the stand as a witness." In Long v. State, 56 Ind. 182; 26 Am. Rep. 19, it was held that a new trial must be granted in case of conviction, where the prosecuting attorney commented on the omission of the prisoner to testify, although the court, on his objection, had checked the attorney in his remarks, and instructed the jury to pay no attention to what had been said. This was under a statute prohibiting any comment upon, or reference to, such omission, in the argument, and any consideration thereof by the jury. All that the district attorney said in this case was: "It is true, gentlemen of the jury, the evidence in this case is not as clear as it might be. There were but two parties to this transaction. You have heard the evidence of one of them. We would have been pleased to have heard from the other, to see what light he could have thrown upon this transaction." But this was considered fatal, and the court said: "We construe the statute to mean, that, when a defendant in a criminal cause declines to testify in his own behalf, absolute silence on the subject is enjoined on the counsel in their argument on the trial, and upon the jury trying the cause during their consultation upon it." In State v. Ober, 52 N. H. 459; 13 Am. Rep. 88, the prisoner declined to answer a question on cross-examination on the ground that he could not be compelled to furnish evidence against himself. In summing up, the district attorney commented on the refusal and was permitted to do so, in spite of objection. This was held proper, the statute only protecting the prisoner from adverse comment or inference in case he refuses to testify at all. Citing Com. v. Mullen, 97 Mass. 545, and the Connors case. In his work on Constitutiona] Limitations (3d ed.), 317, Judge COOLEY approves this case, saying, "the right of comment, where the party makes himself his own witness, and then refuses to answer proper questions, was as clear as the right to exemption from unfavorable comment when he abstained from asserting his statutory privilege." In Ruloff v. State, 45 N. Y. 213, it was held that the error of the court in alluding, in its charge, to the omission of the prisoner to testify, was cured by his subsequent charge that he was not required to testify, and that there was no inference to be drawn against him from the fact of his not having testified. This is quite opposed to the Long case. In the Ruloff case the court remarked: "The act may be regarded as of doubtful propriety, and many regard it as unwise, and as subjecting a person on trial to a severe if not cruel test. If sworn, his testimony will be treated as of but little value, will be subjected to those tests which detract from the weight of evidence given under peculiar inducements to pervert the truth when the truth would be unfavorable, and he will, under the law as now understood and interpreted, be subjected to the cross-examination of the prosecuting officer, and made to testify to any and all matters relevant to the issue, or his own credibility or character, and under pretense of impeaching him as a witness, all the incidents of his life brought to bear with great force against him. He will be examined under the embarrassments incident to his position, depriving him of his self-possession, and necessarily greatly interfering with his capacity to do himself and the truth justice, if he is really desirous to speak the truth. These embarrassments will more seriously affect the innocent man than the guilty and hardened in crime. Discreet counsel will hesitate before advising a client charged with high crimes to be a witness for himself, under all the disadvantages surrounding him. If, with this statute in force, the fact that he is not sworn can be used against him, and suspicion be made to assume the form and have the force of evidence, and circumstances, however slightly tending to prove guilt, be made conclusive evidence of the fact, then the individual is morally coerced, although not actually compelled to be a witness State v. White. against himself. The Constitution, which protects a party accused of crime from being a witness against himself, will be practically abrogated." They then continue: "Neither the prosecuting officer or the judge has the right to allude to the fact that a person has not availed himself of this statute." They then admit that the judge twice made allusion to the fact on the trial in question, "on both occasions in a manner calculated to give an impression prejudicial to the prisoner." But, "inasmuch as the error of this part of the charge was that by its general terms it authorized an inference to the prejudice of the prisoner, rather than a direct statement of an erroneous proposition, we are of opinion that the error was cured by the subsequent explanation." Comments on effect of testimony. In Stover v. People, 56 N Y. 315, it was held that where a prisoner elects to become a witness, and fails to explain or rebut a fact tending to show his guilt, the same presumption arises from his failure that would arise in the like case of any other witness, if it was in his power to give such explanation. It is here said: "The general rule is that when it appears that a party charged with crime has the power, if innocent, to explain a fact or circumstance tending to show his guilt, and fails to give such explanation, such failure may be considered as a circumstance against him. In the present case, the question is whether his failure to give any explanation of such a fact or circumstance, which he could do if innocent, when testifying in his own favor, he having requested to become a witness, comes within this general rule. The argument in behalf of the accused is, that he cannot be made a witness at all except by his own request, and that his failure to be a witness shall not create any presumption against him, and that if he requests to be a witness and becomes such, he need give testimony only to such parts of his case as he may choose; and as to other facts as to which he does not request or desire to give testimony, no presumption can be created against him for his failure to testify. In this construction I cannot concur. True, it is at the option of the accused whether or not to become a witness. When he has exercised this and become a witness, he is made competent for all purposes in the case," etc., concluding as first above indicated. Three judges concurred, and one concurred in the result, but the chief judge and another dissented. It has been held error, when the prisoner had testified, for the judge to instruct the jury that one interested will not usually be as honest and candid as one not so." Veatch v. State, 56 Ind. 584; 26 Am. Rep. 44. The court quote from a former decision on the same point: "We think the court erred in giving the latter part of the charge. The idea is conveyed by the charge, that, in a majority of instances, or as a usual rule, subject of course to exceptions, persons interested will not be as honest and candid as those who are not interested This may be true, in point of fact, and if so, it is a sad commentary upon the honesty and candor of a majority of mankind. But, if the proposition be true, it is not a legal presumption, but matter of fact, of which the jury were the exclusive judges, and concerning which the court could not, without going out of its province, undertake to instruct them. It was the exclusive province of the jury to determine, from their knowl edge of mankind, from the evidence in the cause, and from the appearance and manner of the witness, what credit was due to his evidence, and whether any, and if so, how much, credence should be withheld in consequence of his interest in the cause. It was, in short, the exclusive province of the jury to determine whether one interested would or would not usually be as honest and candid as one not interested.' Comments on appearance of prisoner. The prohibition of comment has been held not to extend to remarks upon the prisoner's appearance while testifying. Thus, in Huber v. State, 57 Ind. 341; 26 Am. Rep. 57, the prosecuting attorney had said: "The evidences of guilt are stamped upon the countenance of the defendant." This was objected to, and the court, in the hearing of the jury, said, “take your objection." On review the court said: "The prosecutor had the right to refer to the countenance of the defendant while testifying as a witness, as one of the tests of his credibility. Considered as an abstract proposition, aside from the defendant's appearance as a witness, these remarks would seem to transcend the limit of legitimate argument on the trial of a criminal cause: but the objection of the appellant to their utterance, so far as we are enabled to judge of what occurred on the occasion, was sustained by the court, and their impropriety thus brought to the attention of the jury. As the proceeding comes to us from the record, we cannot hold that it constituted such an error of law on the trial as amounted to a sufficient cause for a new trial." Impeachment of prisoner.-In Indiana it has been held that, where the accused Litowich v. Litowich. has testified, the prosecution may show that his reputation for truth and veracity is bad, but cannot împeach his general moral character, although the Civil Code provides that, "in all questions affecting the credibility of a witness, his general moral character may be given in evidence. This is based on the common-law doctrine that the inquiry into the character of a witness is limited to truth. The court say, "the statute is an innovation upon the common law, and should be strictly construed." Fletcher v. State, 49 Ind. 124; 19 Am. Rep. 673. But in Massachusetts it is held that the prisoner, having testified, may be impeached, like an ordinary witness. Commonwealth v. Bonner, 97 Mass. 587. LITOWICH V. LITOWICH. (19 Kans. 451.) Divorce-jurisdiction—impeaching judgment collaterally. ▲ decree of divorce, rendered in a State where neither of the parties had ever resided, and without actual notice to the defendant, is absolutely void, and if the lack of jurisdiction does not appear on the face of the record, it may be shown by extrinsic evidence.* RDER for alimony. The opinion states the facts. ORDE John Foster, for plaintiff in error. J. G. Mohler, for defendant in error. VALENTINE, J. This was an action brought by Blanche Litowich, against B. A. Litowich, Ed. Wittman, and Ray Hollingsworth, for the purpose of obtaining alimony from said Litowich, her alleged husband, and of restraining all the defendants from selling or disposing of the property of her said alleged husband. At the time of the commencement of this action the plaintiff obtained an order from the judge of the court below, at chambers, granting to her, as alimony pendente lite (using the word " alimony" in a broad sense, including suit money), $100 for attorney-fees and expenses of the suit, and $100 for her support, and restraining the defendants from disposing of any of her husband's property except "in the due course of their trade and business as merchants in the town of Salina." Afterward the defendants moved to vacate said order. Pending this motion, the plaintiff moved for an attach *See Hood v. State (56 Ind. 263), 26 Am. Rep. 21, and note, 27. Litowich v. Litowich. ment against said Litowich, requiring him to answer for an alleged contempt in not obeying said order with respect to the payment of alimony. By consent of parties these two motions were heard together, and at the same time. It would also seem that the judge of the court below also heard still another motion at the same time, made by the plaintiff for additional alimony. A vast amount of evidence was introduced upon the hearing of these motions, and upon this evidence the judge vacated said order with respect to Hollingsworth, and after modifying such order in some particulars with respect to the other two defendants continued it in force substantially as to them. The judge refused to grant the attachment asked for by the plaintiff, and refused to give her any additional alimony. Defendants Litowich and Wittman excepted to the rulings of the judge of the court below against them. They also moved for a rehearing of their motion to vacate said order, which motion was also overruled, and they duly excepted; and they now bring the case to this court for review. While the judge of the court below may have committed some immaterial errors, we cannot say that he committed any substantial error. It would seem to us that alimony pendente lite should have been allowed in this case; and we cannot say that $200, including suit money, was too much. And we also think, that under the circumstances of this case the injunction pendente lite was also proper. That the said B. A. Litowich and Blanche Litowich were married to each other on March 26, 1876, and that they remained husband and wife from that time up to April 5, 1877, is admitted by all the parties. The plaintiff claims that she still remains the wife of said B. A. Litowich. But the defendants claim that on the 5th of April, 1877, the said B. A. Litowich was divorced from the plaintiff, and that the marriage relation then existing between them was wholly severed and dissolved. And to prove such divorce, the defendants introduced in evidence a duly certified copy of a judgment rendered by the probate court of Davis county, Utah Territory, purporting to grant such divorce. This judgment shows upon its face that there had been "pleadings," and a "summons," and "service of summons," and "proof" in the case in which it was rendered; and yet no such pleading, or summons, or service, or proof, was introduced in evidence on the hearing of the motions in this case. The judgment upon its face seems to be valid; but whether it would still appear to be Litowich v. Litowich. valid if the whole of the record of the case in which it was ren- SALINA, KANSAS, April 14, 1877. He Mrs. BLANCHE: I received your letter. I just got to Salina. I am living in Chicago, Ill., and think to go back there soon. I shall not remain in Salina only two days longer. I have sued you. for a divorce at Chicago. Would have notified you before, but was not sure where you were. Don't write to me any more. Try and think of some one else. Respectfully, B. A. LITOWICH. Mrs. Litowich, having learned that her husband had remained at Salina, subsequently returned, and on 31st August, 1877, she commenced this action for alimony. We think that said parties B. A. and Mrs. Litowich were still husband and wife when this action was commenced, and are now husband and wife. Said Utah judg ment, being void for want of jurisdiction, did not change their matrimonial status, nor affect any of their rights with respect to |