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crime of a similar nature for the purpose of not have in any event affected Wilson or obtaining money. been prejudicial to him.

In

The facts and circumstances in evidence in this case, when they are analyzed and their relation to each other is understood, form a much stronger case of conspiracy than that which was shown in the case of Shelby v. Commonwealth, 91 Ky. 563, 16 S. W. 461, 13 Ky. Law Rep. 178, wherein the court said the evidence of conspiracy was insufficient to authorize the instruction. that case, as stated by the court, the only evidence of conspiracy was the fact of the relationship of father and son existing between the two defendants; it was not shown there that either of them had threatened to commit murder for the purpose of obtaining money; it was not shown that they subsequently met at a convenient place for the carrying out of such a scheme; it was not shown that they left the place of the crime together and ran away; it was not shown that either one of them charged the other with the actual commission of the crime. After a careful examination and analysis of all the evidence of this case we have reached the conclusion that all the circumstances, when considered in their relation to each other, justified the giving of the instruction on conspiracy and authorized the jury to find that such a conspiracy existed.

[4] It is the further contention that the evidence of Beaumont that he heard Wilson say to Chafin while they were confined in jail, "You know you are the one that fired the shot," was incompetent as against Chafin for two reasons: (1) Because it is not shown by the evidence that he either adopted or assented to the statement of Wilson; and (2) because under the circumstances he was not called upon to either deny or assent to it. It is true that the evidence of Beaumont does not, in terms, show that Chafin either denied or assented to this statement of Wilson; but, considering all of Beaumont's testimony, it is fairly apparent that he overheard the whole conversation between the parties and gave the substance of it all.

On the second proposition the appellants rely upon the case of Merriweather v. Commonwealth, 118 Ky. 870, 82 S. W. 592, 26 Ky. Law Rep. 793, 4 Ann. Cas. 1039. In that case eight persons were in custody of the officers, charged with murder, in a waiting room at a depot; they were manacled and being hurried to jail; there was great indignation in the community over the crime; surrounding the accused was a large and excited crowd, and none of the defendants had had an opportunity to consult their counsel or to re

[3] Section 241 of the Criminal Code pro- ceive any advice from their friends. Under vides:

these circumstances, some of the accused

"A conviction cannot be had upon the tes-made statements involving the guilt of Merritimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof."

Under this section it is insisted for the appellants that the court should have given an instruction limiting the weight to be given to the evidence of Beaumont about the conversation overheard by him between the defendants; but clearly this Code provision has no application to evidence of a conversation heard between two defendants, which is given by a third party, but applies only when the testimony of an accomplice is given in open court. The statement by one defendant to another, which is overheard and thereafter testified to by a third party, is not the testimony of one accomplice against another. It is only evidence which may be used against either or both of them. It may be admitted that the statement of Chafin subsequent to the commission of the crime, when Wilson was not present and did not assent to it, was not competent evidence against Wilson. But neither in his statement to the witness at Nortonsville, that he had shot a white man at Hopkinsville and was going to St. Louis, nor in his statement to the woman at Hopkinsville that he had killed Renshaw, did Chafin in any way or manner implicate or connect Wilson with the commission of the crime, and consequently this evidence could

weather, and he never denied, confessed, or assented to such statements, but remained silent, and the court held that under those circumstances he was not bound to speak, and that the evidence was not competent as against him on his separate trial. In the case of Hayden v. Commonwealth, 140 Ky. 634, 131 S. W. 521, the court followed the ruling in the Merriweather Case; the facts in the Hayden Case being that a man and woman were charged with grand larceny, and evidence was admitted against the man upon his separate trial to the effect that the woman had stated to the officers, in his presence, that she had thrown the things out of the window to him, and that he had taken them, and that he did not deny it, and it was held that such evidence on his separate trial was not admissible as against him.

But the difference between the situation of the parties in those cases and this calls for a different application of the rule. In this case the two defendants had been in jail for some time, were not immediately in custody of the officers, were not at the time surrounded by an excited crowd, but were quietly discussing their own case as they supposed in absolute privacy. Nothing could have been more natural than for Chafin to have immediately denied, if it had not been true, the accusation of Wilson that he (Chafin) had fired the shot that killed Renshaw. They were two ignorant negroes, each charged with

a crime, one with having committed a murder [ a murderer in his heart and fully capable of and the other with having been his confed- killing Renshaw, not only demonstrates the

erate, and in their ignorance it was perfectly
natural for them to believe that the one who
actually fired the shot was more guilty than
the other. It cannot be doubted that, when
this conversation was had, Chafin, under the
circumstances, would have immediately de-ceedings consistent herewith.
nied it if it had not been true. If our as-
sumption that Beaumont overheard the whole
conversation, and undertook to give the sub-
stance of it all, is correct, this evidence was
competent against each of them. On another
trial, doubtless, this point will be made
clearer.

purpose for which the letter was introduced,
but emphasizes the necessity of excluding it.

For the reason given, the judgment is reversed, with directions to grant each of the appellants a new trial, and for further pro

[5] While appellants were confined in jail Chafin wrote a letter to his mother, which was intercepted by the jail authorities and was introduced as evidence by the commonwealth over the objection of the appellants. In this letter he earnestly protested his innocence of the charge, but expressed doubt of his acquittal, because of perjured testimony which he expected to be used against him,

and said to his mother, in addition, that, if she and his father did not come down there soon and aid him, he would kill the jailer or the jailer would kill him, as he had made up his mind to die, if necessary, to free himself. The letter, when analyzed, contains nothing but his declaration of innocence and his purpose to kill the jailer, if necessary, to get out of jail. It is apparent that the commonwealth did not want to introduce the letter because it contained this claim of innocence. It could only have desired its introduction for the purpose of showing the threat against the jailer.

TION.

EXALL v. HOLLAND et al.

(Court of Appeals of Kentucky. Oct. 20, 1915.)
1. STATUTES 161 REPEAL BY IMPLICA-
A statute may be repealed either by im-
plication or by express provision of a subse-
quent statute, but a repeal by implication can
only occur where the provisions of the two
where the later statute covers the whole sub-
statutes are repugnant and irreconcilable, or
ject-matter of the first and is manifestly in-
tended as a substitute for it.
Cent. Dig. §§ 230-234; Dec. Dig. 161.]
[Ed. Note.-For other cases, see Statutes,

2. STATUTES 123-TITLES AND SUBJECTS

OF ACTS-REPEALING STATUTES.

Const. 51, provides that no law shall relate to more than one subject, and that shall be expressed in the title. Acts 1914, c. 80, the title of which recites that it is an act defining public roads, providing for their establishment, regulation, use, and maintenance, and creating the office of county road engineer, and describthat certain sections of Ky. St. 1909, embracing ing the duties thereof, provides in section 89 sections 4348-4356, inclusive, are thereby repealed. Held, that section 89, so far as it attempts to repeal the sections of the Kentucky Statutes mentioned, which relate to private passways, violates the Constitution, sinee, while a repealing statute may designate the statutes repealed by reference to the proper sections of the Kentucky Statutes, the repeal of the statute must be set out in the title as the purpose of the act, especially where the subject of the act proposed to be repealed is not naturally connected with the subject expressed in the title of the repealing statute.

Threats by a defendant being tried for homicide, made against persons other than deceased, are not competent, even though they are made before the commission of the crime. Word v. Commonwealth, 151 Ky. 527, 152 S. W. 556. And there is much better rea-3. PRIVATE ROADS son to exclude threats made by the defendant TABLISH-APPEALS. after the commission of the offense with

which he was charged, unless the threat has some connection with the crime charged, or is made with the purpose of suppressing evidence of that crime. In this case the defendants were on trial charged with killing a man, and the commonwealth was undertaking to show their guilt only by circumstantial evidence; no statement in the letter elucidated any issue in the case nor shed any light upon any disputed fact; so far as we can see, it could have been used for no other purpose except to inflame the minds of the jury against a defendant who could be guilty of such a threat. The introduction of this letter was clearly error, and plainly prejudicial to both appellants, for in no event could it have been competent against Wilson.

The fact that one of the attorneys for the commonwealth, in his argument referring to 'this letter, said that it showed Chafin to be

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 176-183; Dec. Dig. 123.] 2-PROCEEDINGS TO ES

Ky. St. 1909, § 4348, subsec. 2, relative to proceedings to establish private passways, provides that upon the filing of the commissioners' report the clerk shall issue process against the owners of the land over which the way is proposed to be established to show cause why the report should not be confirmed. Subsection 3 provides that at the first regular term of the county court after the owners have been summoned the prescribed length of time it shall be the court's duty to examine the report, and, to the extent that no exceptions have been filed, to confirm it. Subsection 4 provides that, when exceptions shall be filed, the court shall cause a jury to be impaneled to try the issues of fact, that, if sufficient cause be not shown for setting aside the verdict, the court shall render judgment in conformity thereto, and that either party may appeal to the circuit court, and the appeal shall be tried de novo upon the confirmation of the report of the commissioners or the assessment of damages. Section 4351 provides that, when the report is filed, the county court shall proceed to establish the passto establish a public road. Held, that an appeal way or refuse it, as in the case of a proceeding to the circuit court and a trial in that court

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

TABLISH-HEARING.

cannot be had until a final judgment is rendered northern direction for a distance of about in the county court. 930 feet to the Broadway road, and prayed [Ed. Note. For other cases, see Private that the court appoint commissioners to reRoads, Cent. Dig. §§ 3-21; Dec. Dig. 2.] 4. PRIVATE ROADS 2-PROCEEDINGS TO ES-Port whether or not it was necessary for them to have such passway for the purposes set out in their petition, and to perform the other duties required of such commissioners by the provisions of the act of June 23, 1893 (Laws 1893, c. 232, art. 2), which is section 4348, subsecs. 2-6, and sections 4349, 4350, 4351, 4352, 4353, 4354, 4355, and 4356, Ky. St. (Carroll) 1909.

On the hearing of the application for the appointment of commissioners the only questions for determination are whether the petition shows facts which under the statute entitles the applicant to have commissioners appointed, and who shall be appointed commissioners, and the question as to the necessity of the passway cannot be then determined, but must be determined on exceptions to the report of the commissioners; the necessity for the passway being one of the subjects upon which the commissioners are required to report.

[Ed. Note.-For other cases, see Private Roads, Cent. Dig. §§ 3-21; Dec. Dig. 2.] 5. PRIVATE ROADS 2-PROCEEDINGS TO Es

TABLISH-JURY TRIAL.

The court may have the advice of a jury on the question of necessity, but is not conclusively bound by its verdict, which has the same weight as the verdict of a jury in other cases.

[Ed. Note. For other cases, see Private Roads, Cent. Dig. §§ 3-21; Dec. Dig. 2.] Appeal from Circuit Court, McCracken County.

Proceeding by Tory Holland and another against Joe Exall. From an order of the circuit court dismissing an appeal from the county court, defendant appeals. Affirmed.

D. G. Park, of Paducah, for appellant. Clay & Reed, of Paducah, for appellees.

HURT, J. The appellees, Tory Holland and Sally Holland, are the joint owners of a tract of 9 acres of land which is situated in

McCracken county, Ky., between the Broadway and Blandville public roads, and Joe Exall, the appellant, is the owner of lands which lie between the lands of appellees and the Broadway public road. In pursuance of section 4349, Ky. St. (Carroll) 1909, the appellees gave the appellant notice of an intended application to be made by them to the county court to have condemned for their benefit a private passway over his lands from their lands to the Broadway public road, and thereafter, on the day designated in the notice, the appellees filed their petition against appellant in the McCracken county court, in which they alleged their ownership, and residence upon the tract of land, and that they had no outlet from their farm to any public road, and that it was necessary for them, in order to enable them to attend the courts of the county, to go to elections, meeting houses, and railroad depots, and to convey their products from their farm, to have a passway across the lands of appellant, which was the only convenient route from their residence on their lands to a public road and to the county seat, courthouse, election places, meeting houses, warehouse, ferry and railroad depots, and asked that a private passway 16 feet wide be condemned for them over the lands of appellant, beginning at the northeast corner of their lands, and running in a

The appellant entered his appearance and filed an answer, in which he denied that there was any necessity for a passway across his lands for the use of the plaintiffs, and as a further defense alleged that his lands and those of the appellees were once owned by one Reynolds, who sold and conveyed the lands now owned by appellees to one Wilkerson, and that by reason of other conveyances the title to the lands now owned by appellees had become vested in them, and that by reason of the deed from Wilkerson to Reynolds the appellees had an implied right to a passway over appellant's lands from their place to the Blandville public road, and for that reason the one sought by them over his lands was unnecessary. The appellees interposed a demurrer to the answer of appellant, but without waiving their demurrer filed a reply controverting the affirmative allegations of the answer, to which reply the appellant demurred generally.

The county court, without passing upon these demurrers, made an order appointing commissioners, as required by the statute above mentioned, when appellant took an appeal from the order of the county court to the circuit court. The case coming on for hearing in the circuit court, it was first ordered to be submitted upon the demurrers heretofore mentioned. Thereafter, upon the motion of appellees, the order submitting the case upon the demurrers was set aside, and an order entered dismissing the appeal, and from this order Exall prayed an appeal to this court, which was granted.

It is insisted by appellant that the statute by which the proceeding by appellees is authorized has been repealed, and that there is now no law in force to base such a proceeding upon or to authorize such a proceeding, and that the circuit court, instead of dismissing his appeal, should have dismissed the petition, and, furthermore, that the circuit court and county court should have tried and determined the question as to whether or not it was necessary under the statute for appellees to have the passway sought by them before a reference of the matter should have been had to commissioners; while the contention of appellees is that the appeal from the county court to the circuit court was prematurely taken, and that the circuit court was correct in its ruling when it ordered the

appeal dismissed that the proceeding might | which is section 4356s, Ky. St. (Carroll) 1915, be terminated in the county court.

are hereby repealed."

expressly repeals the former statute. It does We will first consider whether the act of expressly do so. The section is as follows: June 23, 1893, which is article 2 of chapter "The following sections of Carroll's Kentucky 110 of Carroll's Kentucky Statutes 1909, be- Statutes of 1909, together with all other laws, ing sections 4348-4356, inclusive, has been re- conflict herewith, are hereby repealed: sections or parts of laws, with amendments thereto, in pealed and is not now in force. If repealed, | * ** *4287-4356, * * * inclusive, * *** there is no statute providing for the enforced and establishment of passways over the lands of one person for the use of another to enable him to attend courts, elections, meeting houses, mills, warehouses, or depots for the performance of his duties as a citizen of the community, and, there being no law upon which the court could rest its judgment, in such a state of case, the proceeding of appellees would be unauthorized. It is inşisted that the statute supra was repealed by chapter 80 of the Acts of the General Assembly 1914, and especially by section 89 of that chapter. The last-mentioned act is embraced in article 1 of chapter 110 of Kentucky Statutes (Carroll) 1915, and is sections 4287-4356, inclusive, of chapter 110.

[1] A statute may be repealed by a subsequent statute, either by implication or by express provision of the subsequent statute. A repeal by implication can only occur where the provisions of the prior and subsequent statutes are repugnant to each other and irreconcilable (L. & N. R. R. Co. v. Jarvis, 87 S. W. 759, 27 Ky. Law Rep. 986; Lawson v. First National Bank, 102 S. W. 324, 31 Ky. Law Rep. 318; Durrett v. Davidson, 122 Ky. 851, 93 S. W. 25, 29 Ky. Law Rep. 401, 8 L. R. A. [N. S.] 546; Com. v. Weller, 14 Bush, 218, 29 Am. Rep. 407; Gifford v. Com., 2 Ky. Law Rep. 437; Auditor v. Trustees, etc., 81 Ky. 680; Loran v. City of Louisville, 4 Ky. Law Rep. 257; Adams Express Co. v. City of Owensboro, 85 Ky. 265, 3 S. W. 370, 8 Ky. Law Rep. 908; Beatty v. Com., 91 Ky. 313, 15 S. W. 856, 12 Ky. Law Rep. 898; City of Louisville v. Louisville Water Co., 105 Ky. 754, 49 S. W. 766, 20 Ky. Law Rep. 1529; Mauget v. Plummer, 107 Ky. 41, 52 S. W. 844, 21 Ky. Law Rep. 641), or the later statute must cover the whole subject-matter of the former one and be manifestly intended as a substitute for it (Gorham v. Luckett, 6 B. Mon. 146). An examination of the provisions of article 1, c. 110, Ky. St. (Carroll) 1915, demonstrates that it relates entirely to public highways and the manner of their establishment and maintenance, while article 2, c. 110, Ky. St. 1909, relates entirely to the manner of the establishment and protection of private passways, and defines the status of the vate passways, and defines the status of the persons entitled to such passways. The provisions of the two statutes are in no wise repugnant to each other, nor irreconcilable, and the later statute does not embrace nor cover the subject-matter of the former statute, and could in no event be considered as a substitute for it.

[2] It is, however, contended that the

The act of June 23, 1893, upon the subject of passways, and which is embraced in sections 4348-4356, inclusive, of Carroll's Kentucky Statutes 1909, and which are a portion of the sections of the statutes referred to as sections 4287-4356, all inclusive, are thus attempted to be expressly repealed, and if the repealing clause is valid, it has the effect to do so. Sections 4348-4356, inclusive, Ky. St. 1909, supra, contain nothing that is inconsistent with or in conflict with the provisions of article 1, c. 110, Ky. St. 1915, supra. The title of the act of 1914, which it is contended effects the repeal insisted upon, is as follows:

"An act defining public roads; providing for their establishment, regulation, use and maintenance; and creating the office of county road engineer, and prescribing the duties thereof."

Section 51 of the Constitution provides as follows:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length."

It has been said that the purpose of the Constitution makers, in adopting that provision of the Constitution, was to prevent vicious legislation from being enacted by use of deceptive titles, which would mislead the legislators as to what was being attempted to be done. This court, in Ex parte City of Paducah v. Petitioner, 125 Ky. 510, 101 S. W. 898, 31 Ky. Law Rep. 170, in construing this provision of the Constitution, said:

"In 1904 the General Assembly by an act adopted the Kentucky Statutes as the law of or sections therein might be amended or rethe state, and provided that any of the chapters pealed by reference to and citation of the chapter or section without giving the date or title to the act from which the chapter or section was taken. When the Legislature amends or repeals a section of the Kentucky Statutes, and the title of the repealing or amendatory act mentions the section affected, the members of the amine the statute and ascertain the nature of General Assembly can at once conveniently exthe amendment. *** We therefore conclude that the intention of the constitutional provision will be fully carried out when the title of an act calls attention to the section or chapter of the Kentucky Statutes to be repealed or amended."

It will be seen that the title of the act of 1914, which is article 1, c. 110, Ky. St. 1915, does not refer to or indicate in the remotest way that a clause of the act is designed to repeal the act embraced in article 2, c. 110, Ky. St. 1909. While it is not violative of

the report of the commissioners is filed, the county court shall proceed to establish the passway or refuse it, as in case of a proceeding to establish a public road.

eral Assembly to repeal a statute by adopt-| sessment of damages by said court, as herein ing a repealing statute in which the title provided." Section 4351 provides that, when refers to the act to be repealed by a reference to the section of Kentucky Statutes which embraces the statute, but a statute designed to expressly repeal another must have a title, wherein the repeal of the statute is set out as the purpose of the act, and that is doubly true where the subject of the act proposed to be repealed is not naturally connected with the subject expressed in the title of the act wherein the repealing clause is incorporated.

We conclude, therefore, that section 4356s, Ky. St. 1915, is violative of section 51 of the Constitution so far as it proposes to repeal article 2, c. 110, Ky. St. 1909, and the statute therein embraced is a valid and existing

The contention of appellant that the court should determine the question of the applicant's necessity to have the passway condemned before the appointment of the commissioners is not tenable, for the reason that it is one of the subjects upon which the statute requires the commissioners to report, and it would be idle to make such requirement of the commissioners after the court had already determined that question. The parties may except to the finding of the commissioners upon the subject of the neces, sity of the passway, and the court may have the advice of a jury upon that question. Although it is not conclusively bound by the an examination of all the provisions of the jury's verdict as to the question of the necesstatute embraced in article 2, c. 110, Ky. St. sity for the passway, it has the same weight 1909 (Carroll), that it was intended that this & N. R. R. Co. v. Ward, 150 Ky. 45, 149 S. as the verdict of the jury in other cases. L. statute should provide a complete proceed- W. 1145. It was held by this court, in Kirking for the establishment of a private pass-Christy Co. v. American Association, 128 Ky. way. Jurisdiction was conferred upon the

statute.

[3-5] The question remaining is whether or not the appeal from the county to the circuit court was premature. It is apparent from

county court for that purpose, and it certainly was not contemplated that at any preliminary stage of the proceedings in the county court one or the other parties could remove the proceedings by appeal to the circuit court, and there complete what had been begun in the county court. It is true that the right of appeal from the county to the circuit court exists, and the trial in the circuit court should be a trial de novo, but, manifestly, this appeal to and trial in the circuit court cannot be had until a final judgment is rendered in the county court. Subsection 2 of section 4348 of article 2, c. 110, Ky. St. 1909, provides that upon the filing of the report of the commissioners the clerk shall issue process against the landowners over whose lands the way is proposed to be established to show cause why the report should not be adopted. Subsection 3 of section 4348 provides that at the first term of the county court, after the parties have been summoned the length of time prescribed by the Civil Code before an answer is required, if the court shall find that the report is in conformity to law, it will confirm the report as to all the parties who do not file exceptions to the report. Subsection 4 provides that, if exceptions are filed, the court will impanel a jury to try the issues of fact made by the exceptions. If sufficient grounds are not shown for setting aside the verdict of the jury, the court shall render judgment in conformity thereto. After the judgment then the parties may appeal to the circuit court, where the appeal shall be tried de novo, "upon the confirmation of the report of the commissioners by the county court, or the as

668, 108 S. W. 232, 32 Ky. Law Rep. 1177, the county court showing the necessary facts required by the statute, the court should appoint the commissioners, and when the commissioners' report was filed, process should go against the landowners, and then they could make their defense. The court must determine the necessity for the passway, so far as regards the appointment of the commissioners, from the statements of the pe tition, and the issue as to the actual necessity for the passway is one going to the merits of the case, and must be determined upon exceptions to the report of the commissioners. Kirk-Christy Co. v. American Asso◄ ciation, supra. Ten days' notice of the application for the appointment of commissioners is required to enable the owner through whose land the passway is proposed to be condemned to have a hearing at that time as to who shall be appointed commissioners and whether or not the petition of the applicant shows facts which, under the statute, entitle him to have commissioners appointed. These are the only questions before the court at that time, and necessarily must be the only ones upon which the land owner can be heard.

that when the applicant filed his petition in

With these views, it is not necessary for us to give any opinion as to whether the appellant's defense, as set out in his answer, will or not be sufficient, when offered at the proper time, and we make no intimation in regard to it.

The order of the circuit court dismissing the appeal taken by appellant from the order of the county court is therefore affirmed.

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