lant after transferring their contents to the sacks carried by him from his home; that the sacks bore the name of the local merchant mentioned, had been cut open at the end with a knife, and had the appearance of having contained flour. After securing possession of the sacks, Brinegar and his posse went to the residence of appellant, where they found a barrel containing 50 or 60 pounds of flour and a pair of overalls. About 100 yards from appellant's house Brinegar found a box of tobacco in a chestnut stump. The tobacco contained the brand "Index." Very near the stump in which the tobacco was found Brinegar discovered man's tracks, which he followed a few feet to a large chestnut log, between which and a large slab resting against it he found a can of lard, a box of dry goods, and a box of bacon, and, in the box with the meat, a pair of overalls.

Richardson, and brother-in-law, Arch Har- ford testified had been discarded by appelris, had taken from the West Irvine depot and concealed in the ravine, and that they had obtained the flour by breaking into the depot at night; that appellant then opened the ends of the sacks by cutting them with his knife, and, after emptying the flour therefrom into other sacks which he had taken with him from his home, he threw the old sacks on the ground, and those into which the flour had been emptied were carried by him and the witness to appellant's home, where it was placed in a barrel used as a receptacle for flour. The discarded flour sacks left in the ravine bore the name of C. C. Carroll, a local merchant, who testified he had ordered flour from a wholesale dealer before the breaking into the depot and taking of flour therefrom, and that by reason of the commission of that offense a considerable quantity of the flour he had ordered was never received by him. Lunsford also testified that while he and appellant Appellant's brother, Bertie Richardson, were in the ravine and engaged in trans- was arrested by Brinegar after leaving appelferring the flour from the sacks to those lant's house, and when arrested, was wearwhich appellant had carried with him the ing a pair of overalls. The overalls worn by latter told him he had on another occasion Bertie Richardson, those found in the box. and prior to the taking of the flour from the of meat, and the pair found in appellant's depot taken therefrom a dozen pairs of house were all of the same make and color, overalls and other merchandise, and that and contained on the top button a dollar three pairs of the overalls were appropriated trade-mark. According to the evidence, such by appellant, three by each of his brothers, overalls are called in West Irvine the "doland three by Harris, and that two of the lar mark" overalls. The flour sacks found men whom he did not name had also by Brinegar in the ravine near the house of taken 100 pounds of meat. Lunsford further Arch Harris and the overalls and other artestified that a pair of the overalls was after-ticles of property found in and near the reswards given him by Herman Richardson.

Another witness for the commonwealth testified that late in the afternoon preceding the night of the August depot breaking he saw appellant, Arch Harris, and a woman whom he took to be Harris' wife coming down the Kentucky river in a boat, which landed in a secluded place near his (witness') house, and that after leaving the boat the party, instead of taking the road customarily traveled, which leads from a point near where they landed to West Irvine and Harris' residence, took an untraveled and secluded route to get there, which made the distance to Harris' residence greater than by the customary road.

idence of appellant were taken in charge by the constable, introduced in evidence, and identified as the same articles, or similar in character to those, taken from the depot.

It appears from the evidence that the depot at West Irvine was twice broken into, on each of which occasions property of value was taken from the building. The first breaking occurred July 23 or 24, 1914, and the second in the following month, August. According to the evidence the dry goods. meat, and overalls found at and near appellant's residence were taken from the depot at the time of the July breaking; the flour and tobacco at the August breaking. Appellant objected to Lunsford's testimony respecting his alleged confession that he had broken into the depot and taken property therefrom in July, as well as in August, and moved that the commonwealth be required to elect whether it would prosecute him, for the July or August breaking; but both the obCharles Brinegar, a constable, testified in jection and motion to elect were overruled, behalf of the commonwealth that Luther and the evidence in question admitted, to Lunsford related to him the conversation he which ruling appellant excepted. He also had with appellant in the ravine, and there- objected to the evidence introduced by the upon he (Brinegar) procured the issual of a commonwealth as to the finding at and near search warrant and went, with Lunsford, the home of appellant of the articles of propHiram Canter, and perhaps others, to the erty alleged to have been taken from the deplace in the ravine where the conversation pot at the time of the July breaking, and all between appellant and Lunsford occurred, other evidence tending to connect him with and there found the flour sacks which Luns- the July breaking, but did not renew the mo

Yet another witness for the commonwealth, living near Harris, saw appellant, Harris, and two other men he recognized as appellant's brothers sitting on Harris' porch just after sundown of the night of the August breaking into the depot.

tion to elect. However, all the evidence re-
ferred to was admitted over his objection, to
which he excepted, and it is now insisted for
him that this evidence was incompetent and
highly prejudicial to his substantial rights.
[1, 2] In view of the rule of practice an-
nounced in McCreary v. Commonwealth, 163
Ky. 206, 173 S. W. 351, we deem it right to
hold that, as Lunsford, the first witness for
the commonwealth, directly testified as to
appellant's possession of the flour stolen from
the depot at the time it was broken into in
August, the commonwealth must be regarded
as having elected to try him for the August
breaking, and, if correct in this conclusion,
it must be determined whether the evidence
as to the July breaking should have been ad-
mitted, and, if so, for what purpose could it
be considered by the jury. Ordinarily such
evidence is incompetent, but, as said in
Romes v. Commonwealth, 164 Ky. 334, 175 S.
W. 669:

statement from the same learned author: 'In the proof of intention, it is not always necesthe particular act with the commission of which sary that the evidence should apply directly to the party is charged, for the unlawful intent in the particular case may well be inferred from a similar intent proved to have existed in other transactions done before or after that time.' 163*** We find that this court has in more than one case given its sanction to the rule announced in the foregoing authorities. In Tye v. Commonwealth, 3 Ky. Law Rep. 59, it is said: 'It was proper to allow the commonwealth to prove the number of attempts by the defendant to commit the same offense, for the purpose of establishing the alleged identity of the acLaw Rep. 122, appellant was on trial for effectcused. ***' In Thomas v. Com., 1 Ky. ing an entrance into a dwelling with the intention of stealing. Previously a store had been broken into and goods stolen, and the manner in which the entrance was effected gave strong evidence that the appellant was concerned in the prior breaking into the store. Evidence of the first breaking was admitted to show the appellant's intention to steal in entering the house. Held, 'that, in admitting such evidence of the first breaking, the court did not assume that the appellant was guilty of that crime; but the evidence was such as to warrant the court in allowing the facts to go to the jury, not as evidence that the appellant broke into the store, for that was abundantly proved without, but as evidence of his intention, and such evidence was properly admitted for that purpose.

"There are, however, a few exceptions to this general rule applicable to cases in which it is necessary to establish identity, or guilty knowledge, or intent, or motive for the commission of the crime under trial, or when other offenses are so interwoven with the one being tried that they cannot well be separated from it in the introduction of relevant and competent testimony, or when the independent offense was perpetrated to conceal the crime for which the accused is on trial. Morse v. Com., 129 Ky. 294 [111 S. W. 714, 33 Ky. Law Rep. 831, 894]."

In O'Brien v. Commonwealth, 115 Ky. 608, 74 S. W. 666, 24 Ky. Law Rep. 2511, we held that in a prosecution of burglars for murder by a pistol shot, where the confession of one had disclosed pistols concealed by them after the crime, evidence of other burglaries by them occurring before and on the night of the murder, and in which the pistols so found were stolen, was admissible to identify the guilty parties. In the opinion it is said:

[3, 4] Here the necessity for proving the motive cannot be said to have existed, because the mere breaking into the depot and the taking of the goods therefrom proved beyond doubt the motive actuating the commission of the crime; but the necessity for establishing the identity of appellant as the person or one of the persons who broke into the depot in August did exist, and the confession he made to Lunsford of his participation in the first crime, namely, the breaking into the depot in July, as well as that of the August breaking, for which he was under trial, made it permissible for the common"Bishop's New Criminal Procedure, vol. 1, § wealth to prove in corroboration of Luns1126, in discussing the admissibility of such ev- ford's testimony as to the confession, and of idence as that under consideration, says: "The intent, knowledge, or motive under which the the confession itself, the facts appertaining defendant did the act charged against him, not to the first offense as well as the last. This generally admitting of other than circumstan- corroboration was furnished by the finding tial evidence, may often be aided in the proofs at his house of the flour, and, at the place by showing another crime, actual or attempted. Then it is permissible.' Again, in section 1125, where he had discarded them, of the sacks same volume, we find the following statement: in which he confessed to have taken it from 'Whole Transaction.-As explained under the the depot at the time of the August breakdoctrine of res gestæ, wherever a part of a transaction appears in evidence, the rest is ing, and also by the finding in and near his thereby made admissible. So that the entire house of the overalls, meat, tobacco, and othtransaction wherein it is claimed the wrong in er property which, in his confession to Lunsissue was done may be shown, though it in- ford, he admitted taking from the depot at cludes also other crimes, and even though each transaction was a continuing one, or transpiring the time of his breaking therein in July. in parts on different days.' The same doctrine Appellant, having admitted in the one conis recognized in Greenleaf on Evidence, vol. 1, versation and by a single confession his § 53, wherein it is said: 'In some cases, however, evidence has been received of facts which guilty participation in the two crimes, cannot happened before or after the principal transac- complain of the connection given them by tion, and which had no direct or apparent con- the evidence, or confine the commonwealth's nection with it and, therefore their admission evidence to so much of the conversation as might seem, at first view, to constitute an exception to this rule. But those will be found constituted a confession of his guilt of the to have been cases in which the knowledge or crime committed in August. The commonintent of the party was a material fact, on wealth had a right to prove the entire conwhich the evidence, apparently collateral and foreign to the main subject, had a direct bear-fession and conversation on the subject. ing, and was therefore admitted.' * [5] But, while we agree with the trial

* *

we concede the soundness of appellant's con- edge of the fact that it had been stolen from tention that the court, upon or after overrul- the depot by appellant. If appellant had ing appellant's objection thereto, should have been indicted for the larceny of the flour, inadvised the jury as to the purpose of its ad- stead of breaking into the depot with intent mission, and admonished them that they could to steal and take property therefrom, it not consider it as conducing to prove his guilt might be claimed that Lunsford was conof the August breaking into the depot, for nected with the commission of the offense as which he was being tried, but that it might an accomplice and accessory after the fact, be considered by them, in connection with for it appears that the crime had been comall other evidence in the case, only for the mitted and the immediate asportation of the purpose of determining whether or not he flour effected more than a month before aphad a motive for the commission of the pellant was assisted by him in removing it crime committed in August, or of identifying from the place of concealment to the home him as a participant therein. Bess v. Com- of the former. Bess v. Com- of the former. However, it is useless to monwealth, 118 Ky. 858, 82 S. W. 576. speculate as to this matter, for the indict[6] It is apparent that appellant's comment is not for larceny nor for the receiving plaint of the failure of the court to give the peremptory instruction directing his acquittal cannot be sustained. There was abundant evidence of his guilt.

[7] It is further apparent that appellant's third and final contention must likewise be rejected. This contention rests upon the theory that the witness Lunsford was an accomplice of the appellant in the commission of the crime charged, and that his testimony was uncorroborated, and therefore the peremptory instruction should have been given by the court. Although unauthorized by the evidence, the court instructed the jury that a conviction could not be had upon the testimony of Lunsford, unless corroborated by other evidence tending to connect appellant with the offense; and the corroboration would not be sufficient if it merely showed that the offense was committed and the circumstances thereof. An "accomplice" is one of several equally concerned in the commission of a felony. There is in this case no evidence whatever connecting Lunsford with the commission of the crime for which appellant was indicted. Indeed, it appears from his testimony, which in that particular is uncontradicted, that he had not heard of the depot's having been broken into, either in July or August, until told of it by appellant at the time they went for the flour that the latter had taken from the depot. At most, the evidence only shows that Lunsford aided him in removing the flour from the place of concealment to his home, with knowl

of stolen property with guilty knowledge of its having been stolen, but for the statutory offense arising out of the felonious breaking into the depot with intent to steal and take therefrom property of value. It is manifest, therefore, that Lunsford was not an accomplice in the commission of the crime charged. In Sizemore v. Commonwealth, 6 S. W. 123, 10 Ky. Law Rep. 1, we held:

"It is not the mere fact that a person is charged with a crime in connection with another person that makes him an accomplice. In order to make him an accomplice, it is necessary that his criminal participation in the crime charged should be shown by the evidence."

Here Lunsford was not even charged with the crime for which appellant was indicted, and there was no evidence conducing to show his criminal participation in its commission. In White v. Commonwealth, 5 Ky. Law Rep. 318, it was held that, in order to constitute a witness an accomplice, he must sustain such a relation to the criminal act as that he could be jointly indicted with the defendant for its commission.

The instructions of the court seem to have fairly advised the jury of all the law applicable to the case; but, because of the error of the court in failing to admonish the jury of the purpose for which the evidence as to the first breaking into the depot might be considered by them, the judgment is reversed, and cause remanded for a new trial consistent with the opinion.

413-PUBLIC tions.

Ky. St. § 3567, which is part of the charter of cities of the fourth class, declares that payment of the lien for public improvements may be enforced upon the property bound by suit in equity, and no error shall exempt from payment or defeat the lien after the work has been done as required by ordinance, but the HURT, J. These consolidated suits involve council or the courts shall make all corrections, very much the same questions for determinarules, and orders, to do justice to all parties con- tion. The city of Maysville is a city of the cerned, and if the improvement be made as required by ordinance, the city shall not be lia- fourth class, and in the year 1910 the comble without the right to enforce the lien against mon council determined upon the improve

ment of Second street, by original construc- before a judge of this court to dissolve the tion, from the west property line of Wall injunction, which motion which motion was overruled. street to the west property line extended of Thereafter, on the 25th day of July, the counE. B. Browning's property, and Market street cil, by unanimous vote, adopted another orfrom the south margin of Second street to dinance, which provided that concrete headthe north margin of Third street, by paving ers 4 inches in thickness and 22 inches in Second street within the limits above stated length should be set 14 inches from the tracks with vitrified brick and with cement curbs of the railroad, and on each side of it and gutters, on the ten-year bond and paving throughout the length of the portion of the plan, at the cost of the owners of the abut- street which Kelly Bros., under their conting property. According to the ordinance, tract, had undertaken to improve. This orwhich was duly adopted on the 23d day of dinance was never published. It provided May, 1910, the paving of the street with vit- for the making of a contract for the construcrified brick was to extend from curb to curb. tion of the concrete "headers" between repAt the same time plans and specifications resentatives of the city and the contractors, were adopted for the construction of the but did not provide that the contract to put work, which were made a part of the ordi- in the "headers" should be let to competitive The ordinance was duly published, bidding. Neither did the ordinance provide and a committee appointed to conduct com- for a failure to improve the street with vitripetitive bidding for the contract to do the fied brick between the "headers" and along work, and thereafter Kelly Bros. became the the track and on each side of the track of accepted bidders, and executed the required the railroad. That seems to have been arbond and entered into a contract with the rived at by a parol agreement between Kelly city and proceeded to do the work accord- Bros., who obtained the contract to put in ing to the plans and specifications. The the "headers," and the city council. Anyhow, tracks of the Maysville Street Railroad & Kelly Bros. proceeded to construct the street, Transfer Company are situated about the leaving a space of 3% feet from the center of center of Second street, and run longitudinal- the railroad track and on each side of the cenly along said street for about two blocks, ter and extending out to the concrete "headwhen it approaches the north side of the ers" unimproved in any way. When the apstreet and extends for about one-half of a pellees realized that the portion of the street block alongside of the sidewalk, which was occupied by the railroad track and 14 inches embraced within the proposed improvements. on each side of it was not to be constructed In the right of way contract between the as provided in the ordinance of May 23d, they Maysville Street Railroad & Transfer Com- filed with the city council a protest against pany and the city of Maysville, which exists constructing the street in that way, and acin the character of an ordinance of the city companied it with an offer to pay their pro council, it was agreed between the street rata portions of the cost of constructing the railroad and transfer company and the city street along and on the railroad track as that the tracks of the railroad are to conform the other portions of the street. The council to the grades of the street, "as they are now taking no heed to their protest, the appellees fixed, or as they may be hereafter fixed by or- then served notice upon the city and upon dinance of the city, and the said company the contractors that they would not consider shall keep any portion of said street that it themselves nor their property bound for the may use, occupy, or damage in the same good cost of construction of the street after it was repair in which the remaining part of said carried out with a failure to construct the street may be kept by the city, free of any street upon and along the railroad tracks as cost to the city, and any portion of said street the remainder of it was constructed. which may be torn up or injured by the con- heed was given to this. The contractors prostruction of said road shall be replaced in ceeded to construct the street with vitrified the same good condition in which they found brick out to the railroad track and upon each it." After Kelly Bros. had commenced upon side of it, but 14 inches from the rails they the construction of the street under contract put in the concrete "headers," which, as conmade under the ordinance of May 23d, they tended by the appellees, left 7 feet in the cenand the city engineer joined in reports to the ter of the street, through two blocks of the city council that, in order to construct the improved portion of it, entirely unimproved street as required by the contract, it would as required by the ordinance of May 23d, and be necessary to temporarily remove the for one-half a block unimproved for the tracks of the railroad company. The city re- width of 7 feet from the north curb on the quested the railroad company to remove its side of the street where the railroad track tracks, which it refused to do, and the repre- was situated. The work was accepted by sentatives of the city then undertook to re- the city council, and a report by the city enmove the tracks themselves. This resulted gineer and paving committee apportioning in the railroad company procuring an injunc- the cost of construction of the street and the tion against the city authorities enjoining concrete "headers" between the abutting them from the removal of the tracks, and the property owners on each side of the street

No