The foregoing testimony shows that there was an application for insurance by the deceased. The next question is whether there was testimony to the effect that the policy had been written before the death of J. Frank Murph. J. S. General, a brother of the plaintiff, thus testified :

"Q. Did he, J. S. Ballard, say anything about why he didn't deliver the policy? A. Yes, sir; when I asked him. Q. What did he say? A. He said that he did not deliver the policy because Murph was sick, and he could not deliver it, not while Murph was sick. Mr. Mann: We object. Counsel is trying to establish the provisions of a contract which contract has never been brought into Court. came, and he turned it back because he

Q. The policy did not have

authority to deliver the policy to a sick man? Mr. Mann: We object to his introducing any statement of what was told his witness as a part of his case. We want him to prove his case in the proper way. Mr. Symmes: This is admitted by their answer."

It does not appear from the record that his Honor ruled upon the objection to the questions propounded; therefore, this Court cannot now say that the testimony was incompetent. There is, however, other evidence of the fact 2 that the policy was written and sent to the agent of the company, J. S. Ballard, viz., the answer of the defendants, upon which the record shows the plaintiff's attorneys relied as an admission of such fact.

If the plaintiff relies upon certain allegations of the answer as admissions in his favor, the whole answer should be admitted in evidence, in so far as it relates to that particular part. Carrier v. Hague, 9 S. C. 454. In that case the rule is thus stated: "Thus the pleadings leave upon the plaintiff the onus probandi, and the allegations of the answer are but a proffer of the points upon

3

Opinion of the Court

which defendant relies to sustain her denial.

[115 S. C.-318]

Prior to the

opening of the defense the plaintiff resorts to the answer and produces it as evidence in his behalf. He must take it as it stands, and cannot be permitted to carve out a part and reject the residue, which qualifies, explains, or pertains to the portion selected. (Citing authorities.) The whole answer should have been admitted as evidence so far as it explains or qualifies or is properly connected with the portions relied on by the plaintiff. This lets in evidence of both the facts. in question, viz. *

Applying this principle to the case under consideration, it was error to direct a verdict on the ground that the policy was not written and sent to the agent of the company.

The next question is whether the plaintiff had proved any amount for which the policy was written. The letter, as well as other testimony we have mentioned, shows that the amount of the policy was $1,000.

The last question is whether the plaintiff failed to prove that the plaintiff was the beneficiary under the policy. The fact that the premium of $10 was returned to the plaintiff, and the further fact that the answer states that the application was in favor of the plaintiff as the beneficiary, show that it was error to direct a verdict on this ground.

Reversed.

MR. JUSTICE GAGE did not participate.

October Term, 1920.

10561

STATE v. WYATT.

(105 S. E. 704.)

CRIMINAL LAW-VERRULING PLEA OF FORMER JEOPARDY NOT APPEALABLE AFTER MISTRIAL.-An appeal after a mistrial from an order overruling defendant's plea of former jeopardy must be dismissed, since there has been no final judgment, and the ruling is not appealable.

Before TOWNSEND, J., Union, September term, 1920. Appeal dismissed.

John R. Wyatt indicted for violation of the prohibition law. From refusal of the presiding Judge to allow the plea of autrefois acquit, the defendant appeals.

Messrs. Sam E. Barron and Macbeth Young, for appellant, cite: Autrefois acquit: 1 Bail. L. 651. Ban on alcoholic liquors: Sec. 794 Crim. Code 1912. Procedure changed by XVIII Amend. Const. U. S. Powers of enforcement being full and equal, prosecution in one jurisdiction is bar to prosecution in the other: 227 U. S. 309; 100 U. S. 392. "Twice in jeopardy:" 16 Corp. Jur., par. 370, p. 239; Id., par. 375, p. 240. Right to the plea: 27 S. C. 80; 20 S. C. 392; 65 S. C. 190; 76 S. C. 72. Defendant may enter plea and have it, and the proof submitted to the jury as an issue of fact: Const. S. C. 1895, art. I, pars. 5, 17, 18, 25; 76 S. C. 72.

Mr. Ira C. Blackwood, Solicitor, for respondent.

January 31, 1921.

The following order was handed down PER CURIAM:

There was a mistrial in this case, and the appeal is from an order of the Circuit Court overruling the defendant's plea of former jeopardy.

The case involves a construction of the Eighteenth Amendment of the United States Constitution. No argu

ment was filed by the solicitor.

As there has not been any final judgment, the ruling of his Honor, the presiding Judge, is not appealable. State v. Byars, 79 S. C. 174, 60 S. E. 448, and cases therein cited. Appeal dismissed.

MR. JUSTICE GAGE did not participate.

10565

NICHOLSON v. NICHOLSON.

(105 S. E. 700.)

HUSBAND AND WIFE-WIFE HELD NOT BLAMELESS AND HENCE NOT ENTITLED TO SEPARATE MAINTENANCE.-A wife, to maintain action for alimony, must be blameless, must come with clean hands, and so may not recover though her husband struck her, when she in anger neglected to prepare supper, abused him, and showed willingness for any sort of contest, when he sought peace, and, though he impugned her chastity, she intentionally making him suspicious, whereupon she left him; his treatment of her as a whole being good and he from the first offering and continuing to offer to take her back.

Before DEVORE, J., Oconee, October term, 1919. Affirmed.

Action by Mrs. Mattie H. Nicholson against her husband, L. A. P. Nicholson, for temporary and permanent alimony. From judgment for defendant, the plaintiff appeals.

Mr. J. R. Earle, for appellant, cites: Rule in this State as to alimony: 68 S. C. 123. And this case comes within that rule, which has been followed in 94 S. C. 204; 94 S. C. 11; 95 S. C. 130; 104 S. C. 76; 91 S. C. 246; 100 S. C. 298. Rule in 31 S. C. Eq. 163, has been modified by 68 S. C. 123.

NOTE: On right of wife in fault for separation to separate maintenance, see note in 49 L. R. A. (N. S.), 86.

Mr. E. L. Herndon, for respondent, cites: Burden on appellant to show error where report of master has been concurred in by the Circuit Judge: 103 S. C. 307; 91 S. C. 473; 100 S. C. 157. Conclusion of Circuit Judge will not be disturbed unless clearly opposed to the weight of the evidence: 91 S. C. 247; 80 S. C. 283. Plaintiff must make prima facie showing on motion for temporary alimony: 91 S. C. 246; 51 S. C. 384; 86 S. C. 283; 2 Enc. Law (2d Ed.) 101. Appellant not entitled to alimony: 1 McC. Chan. 209. Slapping wife twice in 36 years with open left hand does not constitute saevitia: 68 S. C. 124. Occasional sallies of passion: 1 McC. Ch. 206. Wife's duty to accept domicile of husband: 60 S. C. 448; 10 Rich. Eq. 175. Offer of defendant to receive his wife into his home: 60 S. C. 456; 10 Rich. Eq. 177; 1 McC. Ch. 208; 68 S. C. 131. Conduct of wife must be blameless: 10 Rich. Eq. 176; 68 S. C. 126. And she was not justified in leaving: 10 Rich. Eq. 175.

January 31, 1921.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

This is an action for alimony. The motion for counsel fee and temporary alimony was heard before Judge Mauldin, who refused the motion and ordered a reference to a special referee to report on the facts and the law. The case was tried before Judge DeVore, who affirmed the master's report and decided in favor of the defendant. The findings of fact by the master are fully sustained by the evidence and are as follows:

"(1) That plaintiff is a woman of very jealous disposition, and that her jealousy, coupled with the tattling of her neighbors, has caused the trouble between her and her husband, and that through her jealous disposition she has