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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. The facts and circumstances in evidence  It is the further contention that the in this case, when they are analyzed and evidence of Beaumont that he heard Wilson their relation to each other is understood, say to Chafin while they were confined in form a much stronger case of conspiracy jail, “You know you are the one that fired than that which was shown in the case of the shot,” was incompetent as against Chafin Shelby v. Commonwealth, 91 Ky. 563, 16 S. for two reasons: (1) Because it is not shown W. 461, 13 Ky. Law Rep. 178, wherein the by the evidence that he either adopted or court said the evidence of conspiracy was assented to the statement of Wilson; and (2) insufficient to authorize the instruction. In because under the circumstances he was not that case, as stated by the court, the only called upon to either deny or assent to it. evidence of conspiracy was the fact of the It is true that the evidence of Beaumont does relationship of father and son existing be- not, in terms, show that Chafin either denied tween the two defendants; it was not shown or assented to this statement of Wilson; but, there that either of them had threatened to considering all of Beaumont's testimony, it commit murder for the purpose of obtaining is fairly apparent that he overheard the money; it was not shown that they subse- whole conversation between the parties and quently met at a convenient place for the gave the substance of it all. carrying out of sich a scheme; it was not On the second proposition the appellants shown that they left the place of the crime rely upon the case of Merriweather v. Comtogether and ran away; it was not shown monwealth, 118 Ky. 870, 82 S. W. 592, 26 Ky. that either one of them charged the other Law Rep. 793, 4 Ann. Cas. 1039. In that case with the actual commission of the crime. eight persons were in custody of the officers, After a careful examination and analysis of charged with murder, in a waiting room at a all the evidence of this case we have reached depot; they were manacled and being hurthe conclusion that all the circumstances, ried to jail; there was great indignation in when considered in their relation to each the community over the crime; surrounding other, justified the giving of the instruction the accused was a large and excited crowd, on conspiracy and authorized the jury to find and none of the defendants had had an opthat such a conspiracy existed.
portunity to consult their counsel or to re 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 weather, and he never denied, confessed, or by other evidence tending to connect
the defend- l assented to such statements, but remained ant with the commission of the offense; and the corroboration is not sufficient if it merely silent, and the court held that under those shows that the offense was committed, and the circumstances he was not bound to speak, circumstances thereof."
and that the evidence was not competent as Under this section it is insisted for the against him on his separate trial. In the appellants that the court should have given case of Hayden v. Commonwealth, 140 Ky. an instruction limiting the weight to be giv- 634, 131 S. W. 521, the court followed the en to the evidence of Beaumont about the ruling in the Merriweather Case; the facts conversation overheard by him between the in the Hayden Case being that a man and defendants; but clearly this Code provision woman were charged with grand larceny, has no application to evidence of a conversa- and evidence was admitted against the man tion heard between two defendants, which is upon his separate trial to the effect that the given by a third party, but applies only when woman had stated to the officers, in his the testimony of an accomplice is given in presence, that she had thrown the things out open court. The statement by one defendant of the window to him, and that he had takto another, which is overheard and thereafter en them, and that he did not deny it, and it testified to by a third party, is not the testi- was held that such evidence on his separate mony of one accomplice against another. trial was not admissible as against him. It is only evidence which may be used against But the difference between the situation of either or both of them. It may be admitted the parties in those cases and this calls for that the statement of Chafin subsequent to a different application of the rule. In this the commission of the crime, when Wilson case the two defendants had been in jail for was not present and did not assent to it, was some time, were not immediately in custody not competent evidence against Wilson. But of the officers, were not at the time surroundneither in his statement to the witness ated by an excited crowd, but were quietly disNortonsville, that he had shot a white man cussing their own case as they supposed in at Hopkinsville and was going to St. Louis, absolute privacy. Nothing could have been nor in his statement to the woman at Hop-more natural than for Chafin to have immekinsville that he had killed Renshaw, did diately denied, if it had not been true, the Chafin in any way or manner implicate or accusation of Wilson that he (Chafin) had connect Wilson with the commission of the fired the shot that killed Renshaw, They
EXALL V. HOLLAND
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 purpose for which the letter was introduced, natural for them to believe that the one who but emphasizes the necessity of excluding it. actually fired the shot was more guilty than For the reason given, the judgment is rethe other. It cannot be doubted that, when versed, with directions to grant each of the this conversation was had, Chafin, under the appellants a new trial, and for further procircumstances, would have immediately de- ceedings consistent herewith. nied it if it had not been true. If our assumption that Beaumont overheard the whole conversation, and undertook to give the substance of it all, is correct, this evidence was
EXALL V. HOLLAND et al. competent against each of them. On another (Court of Appeals of Kentucky. Oct. 20, 1915.) trial, doubtless, this point will be made 1. STATUTES m161 – REPEAL BY IMPLICAclearer.
A statute may be repealed either by im.  While appellants were confined in jail plication or by express provision of a subseChafin wrote a letter to his mother, which quent statute, but a repeal by implication can was intercepted by the jail authorities and only occur where the provisions of the two was introduced as evidence by the common- where the later statute covers the whole sub
statutes are repugnant and irreconcilable, or wealth over the objection of the appellants. ject-matter of the first and is manifestly inIn this letter he earnestly protested his in- tended as a substitute for it. nocence of the charge, but expressed doubt
[Ed. Note.--For other cases, see Statutes, of his acquittal, because of perjured testimo- Cent. Dig. &$ 230-234; Dec. Dig. 161.]
2. STATUTES O 123-TITLES AND SUBJECTS ny which he expected to be used against him,
OF ACTS-REPEALING STATUTES. and said to his mother, in addition, that, if
Const. § 51, provides that no law shall reshe and his father did not come down there late to more than one subject, and that shall soon and aid him, he would kill the jailer or be expressed in the title. Acts 1914, c. 80, the the jailer would kill him, as he had made up public roads, providing for their establishment,
title of which recites that it is an act defining his mind to die, if necessary, to free himself. regulation, use, and maintenance, and creating The letter, when analyzed, contains nothing the office of county road engineer, and describbut his declaration of innocence and his pur- that certain sections of Ky. St. 1909, embracing
ing the duties thereof, provides in section 89 pose to kill the jailer, if necessary, to get out sections 4348-4356, inclusive, are thereby reof jail. It is apparent that the common- pealed. Held, that section 89, so far as it atwealth did not want to introduce the letter tempts to repeal the sections of the Kentucky
Statutes mentioned, which relate to private because it contained this claim of innocence. passways, violates the Constitution, since, while It could only have desired its introduction a repealing statute may designate the statutes for the purpose of showing the threat repealed by reference to the proper sections of against the jailer,
the Kentucky Statutes, the repeal of the stat
ute must be set out in the title as the purpose Threats by a defendant being tried for of the act, especially where the subject of the bomicide, made against persons other than act proposed to be repealed is not naturally condeceased, are not competent, even though nected with the subject expressed in the title
of the repealing statute. they are made before the commission of the
[Ed. Note.-For other cases, see Statutes, crime. Word v. Commonwealth, 151 Ky. 527, Cent. Dig. 88 176-183; Dec. Dig. Om 123.] 152 S. W. 556. And there is much better rea- 3. PRIVATE ROADS 2-PROCEEDINGS TO Esson to exclude threats made by the defendan TABLISH-APPEALS. after the commission of the offense with Ky. St. 1909, $ 4348, subsec. 2, relative to which he was charged, unless the threat has proceedings to establish private passways, pro
vides that upon the filing of the commissioners' some connection with the crime charged, report the clerk shall issue process against the or is made with the purpose of suppressing owners of the land over which the way is proevidence of that crime. In this case the de- posed to be established to show cause why the
report should not be confirmed. Subsection 3 fendants were on trial charged with killing a provides that at the first regular term of the mạn, and the commonwealth was undertaking county court after the owners have been sumto show their guilt only by circumstantial moned the prescribed length of time it shall evidence; no statement in the letter eluci- to the extent that no exceptions have been
be the court's duty to examine the report, and, dated any issue in the case nor shed any filed, to confirm it. Subsection 4 provides that, light upon any disputed fact; so far as we when exceptions shall be filed, the court shali can see, it could have been used for no other of fact, that, if suficient cause be not shown
a purpose except to inflame the minds of the for setting aside the verdict, the court shall renjury against a defendant who could be guilty der judgment in conformity thereto, and that of such a threat. The introduction of this either party may appeal to the circuit court, letter was clearly error, and plainly prejudi- confirmation of the report of the commissioners
and the appeal shall be tried de novo upon the cial to both appellants, for in no event could or the assessment of damages. Section 4351 it have been competent against Wilson. provides that, when the report is filed, the
The fact that one of the attorneys for the county court shall proceed to establish the passcommonwealth, in his argument referring to way or refuse it, as in the case of a proceeding
to establish a public road. Held, that an appeal 'this letter, said that it showed Chafin to be to the circuit court and a trial in that court
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
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. $$ 3-21; Dec. Dig. 2.] 4. Private ROADS Cw2–PROCEEDINGS TO Es- port whether or not it was necessary for them TABLISH-HEARING.
to have such passway for the purposes set On the hearing of the application for the out in their petition, and to perform the other appointment of commissioners the only ques- duties required of such commissioners by the tions for determination are whether the petition shows facts which under the statute entitles the provisions of the act of June 23, 1893 (Laws applicant to have commissioners appointed, and 1893, c. 232, art. 2), which is section 4318, who shall be appointed commissioners, and the subsecs. 2-6, and sections 4349, 4350, 4351, question as to the necessity of the passway can; 4352, 4353, 4354, 4355, and 4356, Ky. St. (Carnot be then determined, but must be determined on exceptions to the report of the commission- roll) 1909. ers; the necessity for the passway being one of The appellant entered his appearance and the subjects upon which the commissioners are filed an answer, in which he denied that there required to report. [Ed. Note.-For other cases, see Private
was any necessity for a passway across his Roads, Cent. Dig. $$ 3-21; Dec. Dig. Om2.]
lands for the use of the plaintiffs, and as a 5. PRIVATE ROADS C2-PROCEEDINGS TO Es- further defense alleged that his lands and TABLISH-JURY TRIAL.
those of the appellees were once owned by The court may have the advice of a jury one Reynolds, who sold and conveyed the on the question of necessity, but is not conclu- lands now owned by appellees to one Wilkersively bound by its verdict, which has the same weight as the verdict of a jury in other cases.
son, and that by reason of other conveyances [Ed. Note. For other cases, see Private the title to the lands now owned by appellees Roads, Cent. Dig. $$ 3–21; Dec. Dig. Om2.] had become vested in them, and that by rea
Appeal from Circuit Court, McCracken son of the deed from Wilkerson to Reynolds County.
the appellees had an implied right to a passProceeding by Tory Holland and another way over appellant's lands from their place against Joe Exall. From an order of the cir- to the Blandville public road, and for that cuit court dismissing an appeal from the coun- reason the one sought by them over his lands ty court, defendant appeals. Affirmed. was unnecessary. The appellees interposed
D. G. Park, of Paducah, for appellant. a demurrer to the answer of appellant, but Clay & Reed, of Paducah, for appellees.
without waiving their demurrer filed a reply
controverting the affirmative allegations of HURT, J. The appellees, Tory Holland the answer, to which reply the appellant deand Sally Holland, are the joint owners of a
murred generally. tract of 9 acres of land which is situated
The county court, without passing upon in McCracken county, Ky., between the these demurrers, made an order appointing Broadway and Blandville public roads, and commissioners, as required by the statute Joe Exall, the appellant, is the owner of above mentioned, when appellant took an aplands which lie between the lands of appel- peal from the order of the county court to lees and the Broadway public road.
the circuit court. The case coming on for suance of section 4319, Ky. St. (Carroll) 1909, hearing in the circuit court, it was first orthe appellees gave the appellant notice of an dered to be submitted upon the demurrers intended application to be made by them to heretofore mentioned. Thereafter, upon the the county court to have condemned for their motion of appellees, the order submitting the benefit a private passway over his lands from case upon the demurrers was set aside, and their lands to the Broadway public road, and an order entered dismissing the appeal, and thereafter, on the day designated in the no- from this order Exall prayed an appeal to tice, the appellees filed their petition against this court, which was granted. appellant in the McCracken county court, in It is insisted by appellant that the statute which they alleged their ownership, and resi- by which the proceeding by appellees is audence upon the tract of land, and that they thorized has been repealed, and that there is had no outlet from their farm to any public now no law in force to base such a proceedroad, and that it was necessary for them, in ing upon or to authorize such a proceeding, order to enable them to attend the courts of and that the circuit court, instead of dismissthe county, to go to elections, meeting houses, ing his appeal, should have dismissed the peand railroad depots, and to convey their prod-tition, and, furthermore, that the circuit ucts from their farm, to have a passway court and county court should have tried and across the lands of appellant, which was the determined the question as to whether or only convenient route from their residence not it was necessary under the statute for on their lands to a public road and to the appellees to have the passway sought by them county seat, courthouse, election places, meet- before a reference of the matter should have ing houses, warehouse, ferry and railroad been had to commissioners; while the contendepots, and asked that a private passway 16 tion of appellees is that the appeal from the feet wide be condemned for them over the county court to the circuit court was prelands of appellant, beginning at the north- maturely taken, and that the circuit court east corner of their lands, and running in a ) was correct in its ruling when it ordered the
EXALL V. HOLLAND
appeal dismissed that the proceeding might, which is section 4356s, Ky. St. (Carroll) 1915, be terminated in the county court.
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 reconflict 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 * are hereby repealed.” establishment of passways over the lands The act of June 23, 1893, upon the subject of one person for the use of another to enable of passways, and which is embraced in sechim to attend courts, elections, meeting tions 4348–4356, inclusive, of Carroll's Kenhouses, inills, warehouses, or depots for the tucky Statutes 1909, and which are a porperformance of his duties as a citizen of the tion of the sections of the statutes referred community, and, there being no law upon to as sections 4287-4356, all inclusive, are which the court could rest its judgment, in thus attempted to be expressly repealed, and such a state of case, the proceeding of ap- if the repealing clause is valid, it has the efpellees would be unauthorized. It is insisted fect to do so. Sections 438-4356, inclusive, that the statute supra was repealed by chap Ky. St. 1909, supra, contain nothing that is ter 80 of the Acts of the General Assembly inconsistent with or in conflict with the pro1914, and especially by section 89 of that visions of article 1, c. 110, Ky. St. 1915, supra. chapter. The last-mentioned act is embraced The title of the act of 1914, which it is in article 1 of chapter 110 of Kentucky Stat- contended effects the repeal insisted upon, is utes (Carroll) 1915, and is sections 4287-4356, as follows: inclusive, of chapter 110.
"An act defining public roads; providing for  A statute may be repealed by a subse their establishment, regulation, use and main
tenance; and creating the office of county road quent statute, either by implication or by ex- engineer, and prescribing the duties thereof." press provision of the subsequent statute.
Section 51 of the Constitution provides as A repeal by implication can only occur where
follows: the provisions of the prior and subsequent
"No law enacted by the General Assembly statutes are repugnant to each other and ir- shall relate to more than one subject, and that reconcilable (L. & N. R. R. Co. v. Jarvis, shall be expressed in the title, and no law shall 87 S. W. 759, 27 Ky. Law Rep. 986; Lawson be revised, amended, or the provisions thereof v. First National Bank, 102 S. W. 324, 31 Ky. only, but so much thereof as is revised, amend
extended or conferred by reference to its title Law Rep. 318; Durrett v. Davidson, 122 Ky.ed, extended or conferred, shall be re-enacted 851, 93 S. W. 25, 29 Ky. Law Rep. 401, 8 L. and published at length.” R. A. [X. S.) 516; Com. v. Weller, 14 Bush, It has been said that the purpose of the 218, 29 Am. Rep. 407; Gifford v. Com., 2 Ky. Constitution makers, in adopting that proLaw Rep. 437; Auditor v. Trustees, etc., 81 vision of the Constitution, was to prevent Ky. 680; Loran v. City of Louisville, 4 Ky vicious legislation from being enacted by use Law Rep. 257; Adams Express Co. v. City of of deceptive titles, which would mislead the Owensboro, 85 Ky. 265, 3 S. W.370, 8 Ky. Law legislators as to what was being attempted Rep. 908; Beatty v. Com., 91 Ky. 313, 15 S. to be done. This court, in Ex parte City of W. 856, 12 Ky. Law Rep. 898; City of Louis- Paducah v. Petitioner, 125 Ky. 510, 101 S. ville v. Louisville Water Co., 105 Ky. 751, W. 898, 31 Ky. Law Rep. 170, in construing 49 S. W. 766, 20 Ky. Law Rep. 1529; Mau- this provision of the Constitution, said: get v. Plummer, 107 Ky. 41, 52 S. W. 844, "In 1904 the General Assembly by an act 21 Ky. Law Rep. 641), or the later statute adopted the Kentucky Statutes as the law of must cover the whole subject-matter of the or sections therein might be amended or re
the state, and provided that any of the chapters former one and be manifestly intended as a pealed by reference to and citation of the chapsubstitute for it (Gorham v. Luckett, 6 B. ter or section without giving the date or title to Mon. 146). An examination of the provisions the act from which the chapter or section was of article 1, c. 110, Ky. St. (Carroll) 1915, peals a section of the Kentucky Statutes, and
taken. When the Legislature amends or redemonstrates that it relates entirely to public the title of the repealing or amendatory act menhighways and the manner of their establish-tions the section affected, the members of the ment and maintenance, while article 2, c. 110, amine the statute and ascertain the nature of
General Assembly can at once conveniently exKy. St. 1909, relates entirely to the manner the amendment. * * * We therefore conof the establishment and protection of pri- clude that the intention of the constitutional vate passways, and defines the status of the provision will be fully carried out when the ti
tle of an act calls attention to the section or persons entitled to such passways. The pro- chapter of the Kentucky Statutes to be repealed visions of the two statutes are in no wise or amended.” repugnant to each other, nor irreconcilable, It will be seen that the title of the act of and the later statute does not embrace nor 1914, which is article 1, c. 110, Ky. St. 1915, cover the subject-matter of the former stat- does not refer to or indicate in the remotest ute, and could in no event be considered as a way that a clause of the act is designed to substitute for it.
repeal the act embraced in article 2, c. 110,  It is, however, contended that the Ky. St. 1909. While it is not violative of 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 refer- the report of the commissioners is filed, the ence to the section of Kentucky Statutes county court shall proceed to establish the which embraces the statute, but a statute passway or refuse it, as in case of a prodesigned to expressly repeal another must ceeding to establish a public road. have a title, wherein the repeal of the stat- The contention of appellant that the court ute is set out as the purpose of the act, and should determine the question of the applithat is doubly true where the subject of the cant's necessity to have the passway conact proposed to be repealed is not naturally demned before the appointment of the comconnected with the subject expressed in the missioners is not tenable, for the reason that title of the act wherein the repealing clause it is one of the subjects upon which the statis incorporated.
ute requires the commissioners to report, We conclude, therefore, that section 4356s, and it would be idle to make such requireKy. St. 1915, is violative of section 51 of the ment of the commissioners after the court Constitution so far as it proposes to repeal had already determined that question. The article 2, c. 110, Ky. St. 1909, and the statute parties may except to the finding of the therein embraced is a valid and existing commissioners upon the subject of the neces, statute.
sity of the passway, and the court may have [3-5] The question remaining is whether or the advice of a jury upon that question. Alnot the appeal from the county to the circuit though it is not conclusively bound by the court was premature. It is apparent from 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 county court for that purpose, and it cer- 668, 108 S. W. 232, 32 Ky. Law Rep. 1177, tainly was not contemplated that at any pre- the county court showing the necessary facts
that when the applicant filed his petition in liminary stage of the proceedings in the county court one or the other parties could required by the statute, the court should apremove the proceedings by appeal to the cir- point the commissioners, and when the comcuit court, and there complete what had been missioners' report was filed, process should begun in the county court. It is true that go against the landowners, and then they the right of appeal from the county to the could make their defense. The court must circuit court exists, and the trial in the cir- determine the necessity for the passway, so cuit court should be a trial de novo, but, far as regards the appointment of the commanifestly, this appeal to and trial in the missioners, from the statements of the pe, circuit court cannot be had until a final judg-tition, and the issue as to the actual necessiment is rendered in the county court. Sub- ty for the passway is one going to the merits section 2 of section 4318 of article 2, c. 110, of the case, and must be determined upon Ky. St. 1909, provides that upon the filing exceptions to the report of the commissionof the report of the commissioners the clerk ers. Kirk-Christy Co. v. American Asso. shall issue process against the landowners ciation, supra. Ten days' notice of the apover whose lands the way is proposed to be plication for the appointment of commisestablished to show cause why the report sioners is required to enable the owner should not be adopted. Subsection 3 of sec- through whose land the passway is proposed tion 4318 provides that at the first term of to be condemned to have a hearing at that the county court, after the parties have been time as to who shall be appointed commissummoned the length of time prescribed by sioners and whether or not the petition of the the Civil Code before an answer is required, applicant shows facts which, under the statif the court shall find that the report is in ute, entitle him to have commissioners apconformity to law, it will confirm the report pointed. These are the only questions beas to all the parties who do not file excep-fore the court at that time, and necessarily tions to the report. Subsection 4 provides must be the only ones upon which the land that, if exceptions are filed, the court will owner can be heard. impanel a jury to try the issues of fact made With these views, it is not necessary for by the exceptions. If sufficient grounds are us to give any opinion as to whether the apnot shown for setting aside the verdict of pellant's defense, as set out in his answer, the jury, the court shall render judgment in will or not be sufficient, when offered at the conformity thereto. After the judgment then proper time, and we make no intimation in the parties may appeal to the circuit court, regard to it. where the appeal shall be tried de novo, "up- The order of the circuit court dismissing on the confirmation of the report of the com- the appeal taken by appellant from the ormissioners by the county court, or the as- der of the county court is therefore affirmed.