286 S.W.2d 531 | Ky. Ct. App. | 1956
The appellant, Joe Delk, was convicted of storehouse breaking and sentenced to prison for five years. He seeks a reversal of the judgment on the ground that his wife was permitted to testify concerning confidential communications had between them during marriage. Mrs. Delk testified that the appellant came home about 4:00 a. m. and told her he had broken into a service station, and had taken a watch and about seven dollars in change from a cigarette machine.
These facts, aside from those pertaining to the place broken into, are practically identical with those recently presented to us in the case of Delk v. Commonwealth, Ky., 285 S.W.2d 169. Therein we held that under ICRS 421.210(1) a spouse can not testify concerning facts peculiarly known to her because of the marital relation; that is, facts revealed in a confidential communication from one spouse to the other.
That case is controlling here. Therefore, the judgment is reversed, with directions to set it aside, and for proceedings consistent with this opinion.
