picking up his hat, and the man half straightened up and went out in a half-stooping position slowly down the hall and then hurried on down-stairs and out doors. The court sustained an objection to the competency of the witness and it is argued that this was erroneous. The ruling was clearly right. When two or more are jointly indicted for a crime their defenses are so far separate that evidence which is competent for or against one may be received although incompetent as to the co-defendants. But this does not affect the rule that neither the husband nor wife is admissible as a witness in a cause in which the other is a party. This rule is founded not only on their identity of interest but partly on principles of public policy, and excludes the testimony of the husband or wife if it concerns or directly affects the other, though where the grounds of defense are several and distinct and in no manner dependent on each other, the husband or wife of one defendant may testify for another as to any matter bearing exclusively upon such other. (Gillespie v. People, 176 Ill. 238; Creed v. People, 81 id. 565; 1 Greenleaf on Evidence, secs. 334, 335.) The matter about which it was proposed to examine the witness was the persons who were present at the time when Whisman was shot, and though counsel stated that they did not propose to ask about whether Mrs. Holtz was in the room or not, they did expect to show that the shooting of Whisman occurred after she left the room, and that as Whisman was going down the hall Holtz saw the form of a man in a half-stooping position, who went down the hall and hurried down the stairs. The effect of this evidence would.have a direct tendency to secure the acquittal of Mrs. Holtz by showing that she was not present and that another person was present who could have done the shooting. The court gave an instruction as to accessories and their responsibility and punishment in the language of the statute. The following instructions were also given: "The court instructs the jury, as a matter of law, that if two persons conspire to do an unlawful act and death occurs in the prosecution of the common object both are guilty of the homicide. The act of one of them done in furtherance of the common design is in the consideration of, the law the act of both, and he who, being present, aids, abets, assists, advises or encourages, or, not being present, hath advised or encouraged to do an illegal act, is responsible for all the natural and probable consequences that may arise from its perpetration." "The court instructs the jury, as a matter of law, that in this cause to constitute the crime of murder it is not necessary for the State to show that it was or may have been the original intent of the defendants, or either of them, to kill the deceased, Walter Whisman. It is sufficient if the jury believe from the evidence, beyond a reasonable doubt, that the defendants combined to do an unlawful act, and that the deceased was killed by the defendants, or either of them, in the attempt to execute such unlawful act.” The plaintiffs in error make the objection to these instructions that there was no evidence to base them on. The fact that two persons may be jointly concerned in a homicide would not, alone, be evidence of a conspiracy to commit it. A conspiracy must be proved like any other fact, and this may be done by circumstantial evidence which establishes the fact. To justify the conclusion that a conspiracy existed there must be evidence of some agreement or some joint action toward accomplishing the object of the conspiracy. There is no such evidence in this case. No word spoken or act done in concert looking toward the accomplishment of the crime is shown, and the circumstances. shown or statements made after the commission of the crime do not tend to show a conspiracy to commit it. If it be assumed that Mrs. Holtz is guilty, then it is consistent with the evidence that Mrs. Whisman knew nothing of the crime until it was done. Her subsequent acts or words could not make her a conspirator and responsible for acts already done, nor would her knowledge of the crime and her subsequent acts or statements make her responsible as an accessory to its commission. She would only be an accessory after the fact and responsible as such. It was error to give these instructions. The judgment will be reversed and the cause remanded. CARTWRIGHT, C. J., and THOMPSON, J., dissenting. (No. 13360.-Judgment affirmed.) THE PEOPLE ex rel. The County of Peoria, Defendant in Error, vs. THE ESTATE OF MICHAEL HARRIGAN, Deceased. (CHRISTOPHER HARRIGAN et al. Plaintiffs in Error.) Opinion filed June 16, 1920—Rehearing denied October 12, 1920. I. PRACTICE-briefs should not contain discussion of matters not before the court. Counsel should not in their briefs discuss matters that are not before the court, as such practice and the citation of authorities that are not in point tend to confuse the issues and make unnecessary labor for the court in determining the real issues. error. 2. APPEALS AND ERRORS—who is entitled to sue out a writ of As a general rule a writ of error must be sued out in the name of the parties to the action in the lower court, and to entitle a person to sue out a writ of error he must be a party or a privy to the record, or be one who is injured by the judgment or who will be benefited by its reversal, or is competent to release errors. 3. SAME-legatees are entitled to review judgment for unpaid taxes against estate. Legatees who are entitled to all of the testator's property after the payment of debts are entitled to a writ of error to review a judgment of the circuit court dismissing their appeal from an order of the probate court allowing a claim for unpaid taxes against the estate. 4. SAME-interest of parties suing out a writ of error must appear from record or be alleged in assignment of errors. Before parties can sue out a writ of error their interest must appear from the record, and if they are parties to the record their interest sufficiently appears without an allegation of interest, but if their interest does not appear from the record it must be alleged in the assignment of errors so as to show their relation to the suit. 5. SAME-facts stated in assignment of errors are admitted by joinder in error. An assignment of errors stands as the declaration of parties suing out a writ of error, and a joinder in error has the effect of a demurrer and admits the facts alleged in the assignment of errors, in the absence of a special plea denying them. 6. SAME when case may be reviewed by direct writ of error from Supreme Court as involving revenue. Review of a judgment of the circuit court dismissing an appeal from an order of the probate court allowing a claim for unpaid taxes against an estate may be obtained by a direct writ of error from the Supreme Court, as the case is one relating to the revenue. 7. SAME-when order dismissing appeal to circuit court must be affirmed. An order of the circuit court dismissing an appeal from an order of the probate court for failure to comply with a rule extending the time to file a good and sufficient appeal bond must be affirmed where, so far as the record shows, the ruling was right. WRIT OF ERROR to the Circuit Court of Peoria county; the Hon. T. N. GREEN, Judge, presiding. MANSFIELD & COWAN, for plaintiffs in error. C. E. MCNEMAR, State's Attorney, (DAN R. SHEEN, of counsel,) for defendant in error. Mr. JUSTICE THOMPSON delivered the opinion of the court: This writ of error is prosecuted by Christopher Harrigan and Maggie Harrigan, as surviving legatees under the last will and testament of Michael Harrigan, deceased, to review an order of the circuit court of Peoria county dismissing an appeal from an order of the probate court allowing a claim for unpaid taxes against the estate of Michael Harrigan. This suit was a simple proceeding to collect unpaid back taxes assessed against Michael Harrigan in his lifetime, but it seems to have been decidedly prolific in its production of thrifty litigation. The case in one form or another has been before this court three times, (Heinrich v. Harrigan, 288 Ill. 170, 291 id. 294, and People v. Harrigan, 291 id. 206,) and before the Appellate Court on another question. This will be the fifth review in an appellate court on side issues. Counsel for defendant in error use much of their brief in making complaint of the delay occasioned by all this litigation, but the courts cannot be expected to settle the case on its merits until counsel get the question before the courts. The discussion of matters that are not before the court simply tends to confuse the issues and makes much unnecessary labor for the court in its attempt to determine the issues that are in fact presented. Citation of authorities that do not touch the points before the court confuse the issue and waste the time of the court. It is first contended by defendant in error that this writ of error should be dismissed because plaintiffs in error have no authority to prosecute the cause. As a general rule a writ of error must be sued out in the name of the parties to the action in the lower court. (Louisville, Evansville and St. Louis Consolidated Railroad Co. v. Surwald, 150 Ill. 394; Wuerzburger v. Wuerzburger, 221 id. 277.) To entitle a person to sue out a writ of error he must be a party or a privy to the record, or be one who is injured by the judgment or who will be benefited by its reversal, or is competent to release errors. (McIntyre v. Sholty, 139 Ill. 171; Anderson v. Steger, 173 id. 112; Granat v. Kruse, 213 id. 328; People v. O'Connell, 252 id. 304; People v. Lower, 254 id. 306; People v. Harrigan, supra.) The order of the circuit court dismissing the appeal amounted to an affirmation of the order of the probate court awarding the claim of the county. According to the allegations in their assignment of errors, plaintiffs in error are entitled, as legatees under the will of their deceased brother, to all of his property that remains after the payment of his debts. If any unjust or illegal claims are allowed against the estate of Michael Harrigan plaintiffs in error would be dam |