[3] Nor was it necessary that the railroad [4] Passing' now to other matters, we find company should have any notice that this it insisted by counsel for the administrator nunc pro tunc order was about to be made. that the lower court should be directed, on a The railroad company had no concern in who return of the case, to enter a judgment on should be appointed administrator of Mor- the verdict in view of the fact that the lower gan; the only person whose wishes it was court overruled the motion and grounds for a necessary to consult bad requested the ap- | new trial. In the present condition of the pointment of Hobbs. If it was sought to en- record, it would be manifestly unjust to comter a nunc pro tunc judgment in a case as ply with this request, because none of the was attempted in Montgomery v. Viers, supra, evidence heard on the trial except that relatit is manifest that the person against whom ing to the nunc pro tunc order has been the nunc pro tunc judgment was about to be brought to this court, and therefore we are entered should have notice of what was unable to say whether the trial court propergoing to be done, because his rights would be ly overruled the motion and grounds for a immediately and directly affected by the en- new trial. The railroad company, after the try of the nunc pro tunc judgment against court had declined to enter a judgment on him, and so it would be proper to give notice the verdict, and especially after it had susin any state of case in which the entry of tained its motion to dismiss the petition, had the .nunc pro tunc order might affect the no reason to prosecute an appeal to this rights of strangers to the record. In other court or bring any part of the record here. words, if it is necessary that a person should Indeed, it could not have prosecuted an aphave notice of the entry of an order or judg- peal because there was no judgment against ment if the order or judgment had been en- it to appeal from. The only matter before us tered when it should have been, then it is on this appeal is the question involving the necessary that he should have notice of the ruling of the court in respect to the nunc pro making of a nunc pro tunc order to take the tunc order. place of the omitted order. But if it is not

Nor is it quite clear from the record necessary that a party should have notice of whether the trial court was influenced to the entry or making of the original order overrule the motion and grounds for a new when it should have been entered or made, trial because it had disposed of the case by neither will it be necessary to give such par. dismissing the petition, or because after ty notice of the entry or making of the nunc hearing and considering the motion and pro tunc order to take its place. It is further insisted by counsel for the should be overruled. Therefore, on the re

grounds for a new trial it believed they railroad company that it does not appear turn of the case, the trial court will set that the Lee county court was in session in turn of the case, the trial court will set

aside so much of the order or judgment as February 13, 1915, and therefore the nunc pro tunc order actually made on September dismissed the petition, and will enter a judg15, 1916, could not be put on the order book ment on the verdict, and then either overrule of the court on a day when the court was not or sustain the motion and grounds for a new in session. The county court can hold ses- trial as seems to it right and proper. After sion every judicial day in the year, and on the motion and grounds for a new trial have any of these days enter an order appointing been disposed of by a new order, then the an administrator. On February 13, 1915, the party complaining of the ruling of the court court, except for oversight or inadvertence, on the motion and grounds for a new trial could and would have made the order show- will follow the usual practice in such cases ing the appointment and qualification of in order to bring the case to this court if it is Hobbs as administrator, and, this being so, desired to prosecute an appeal. we find no objection to postdating the nunc Wherefore the judgment is reversed, with pro tunc order to correspond with the date directions to proceed in conformity with this when it should have been made.

opinion.

(181 Ky. 49)

7. TAXATION O905(1)-INHERITANCE TAXSEVIER'S EX'X et al. v. COMMON

ACTION-TRIAL BY JURY.

In the commonwealth's action to ascertain WEALTH.

and have certified for collection an inheritance (Court of Appeals of Kentucky. June 11,

tax, the circuit court erred in submitting to a 1918.)

jury the question of the value of the realty

over the objection and exception of defendants, 1. TAXATION Cm 905(1)—INHERITANCE TAX-executrix, and devisees. ACTION-APPROVAL BY AUDITOR-STATUTES. 8. TAXATION Omw905(1)-INHERITANCE TaxUnder Ky. St. § 4258, authorizing the audi

ACTION TO COLLECT-TRIAL DE Novo ON tor of public accounts to appoint a supervisor APPEAL-STATUTES. of revenue agents whose duty shall be to su- By the express provisions of Civ, Code pervise the action of each revenue agent in the Prac. 88 700, 726, and Ky. St. $$ 4241, 4260, state, and providing that no action or proceed on an appeal to the circuit court from the couning shall be instituted by any revenue agent ty court in proceedings for the listing of omituntil it is approved by the supervisor or the ted property for taxation, such as an action auditor, the commonwealth's action for an in- by the commonwealth to ascertain and have heritance tax, the petition bearing indorsement certified for collection an inheritance tax, the of approval by the supervisor of revenue agents, trial is to be de novo, and, though plaintiff was maintainable, though not authorized di- cannot amend his pleading so as to set up a rectly by the auditor in compliance with section new and independent cause of action, defendant 4263–4.

has the right to make all the defenses he has, 2. TAXATION Ci 899 INHERITANCE TAX and it is within the discretion of the circuit SETTLEMENT WITH SHERIFF-STATUTE. court in which the appeal is pending for trial

The sheriff being authorized to accept pay- de novo to allow the defense to be changed or a ment of and to receipt for inheritance taxes only new defense to be made as if the case had been after the property liable has been valued, or if originally brought in that court. there is no question of value, and having no authority to fix the value of property for pur- Appeal from Circuit Court, Clay County. poses of such taxation, a duty imposed, by Ky. Action by the Commonwealth of Kentucky St. § 4281k, on appraisers appointed by the county court whenever the value is uncertain, against William H. Sevier's executrix and a decedent's estate's settlement with the sheriff, others. From the judgment, defendants apmade after the commonwealth's suit for the peal, and plaintiff cross-appeals. Affirmed disputed inheritance tax was instituted, was not on the cross-appeal, and on the original apa full accord and satisfaction of the commonwealth's claim for the tax.

peal reversed and remanded for proceedings 3. TAXATION @ 906 – INHERITANCE TAX - consistent with the opinion. SETTLEMENT WITH SHERIFF.

Rawlings & Wright, of Manchester, and If the value of the property of a decedent's estate were certain, the sheriff could not, by John H. Wilson, of Barbourville, for appelacceptance of the amount of inheritance taxes lants. A. T. W. Manning and Manning & due, relieve a delinquent party of liability for Lyttle, all of Manchester, for the Commonpenalties which had accrued and were due the

wealth, revenue agents in the commonwealth's action for the tax, already instituted. 4. TAXATION Omw905(1)-INHERITANCE TAX

CLARKE, J. William H. Sevier died tesIGNORANCE OF LAW.

tate in November, 1913, a resident of Clay Neither ignorance of the law on the part county, and by his will devised his property, of the property owners, nor that of the assess- both real and personal, to collateral kindred. ing officers, nor the latter's failure to perform This action was instituted in the Clay county

a to tion to enforce the assessment of omitted prop-court November 16, 1916, three years after erty and the collection of inheritance taxes due Sevier's death, for the commonweath by a the commonwealth, or the penalties due the rev- revenue agent against the executrix and devenue agent for his services in compelling the isees of decedent to ascertain and have cerment of taxes due thereon.

tified to the sheriff for collection the amount 5. TAXATION Om 305(1)-INHERITANCE Tax- of the inheritance tax due the commonwealth APPOINTMENT OF APPRAISER-STATUTE. from his estate, the several items of property

After the commonwealth's suit to ascertain being described and valued separately, and and have certified for collection the amount of the value of the personal property alleged to not the duty of the court to appoint an ap- be $8,439.35 and that of the real estate, $12,praiser to fix the value of the real estate under 000. The petition was indorsed: Ky. St. § 4281k, which applies to ex parte pro- "This suit is approved. L. B. Greene, Su ceedings, and is without application when a pervisor of Revenue Agents, November 14, suit has been filed by a revenue agent, as all | 1916." issues raised in such an action, by sections 4241, 4260, are to be tried and determined by The defendants, after a demurrer to the the court.

petition had been overruled, filed answer, in 6. TAXATION C905(1)-INHERITANCE Tax-which they did not deny any of the allegaVALUATION OF REALTY.

tions of the petition, but set up, as a defense The valuation of realty fixed by the board to the action, a settlement which they had of supervisors of the county for the year after the death is not conclusive of value in the com-made with the sheriff of Clay county after monwealth's action to ascertain and have certi- the suit had been filed, and the payment to fied for collection an inheritance tax, the stat- him of the amount of the inheritance tax due ute expressly providing for a different method the commonwealth, as determined by that of assessing property subject to inheritance taxes, by different officials, and regardless of its settlement, for which he had given them his assessment for ordinary taxes.

receipt. A demurrer to this answer was sustained, and, upon their refusal to plead fur-, $6,000; and that the same be certified by the ther, judgment was entered, fixing the value clerk of the Clay county court to the sheriff of the property as alleged in the petition and for collection of the taxes due thereon, todirecting the clerk of the court to certify to gether with interest and penalties, as directthe sheriff for collection the amount of the ed in the judgment appealed from, which tax and penalties due under the law upon gave defendants credit for the amount they such valuations, less the amount theretofore had paid to the sheriff. From this judgpaid to the sheriff under the attempted settle- ment, defendants have appealed, and plainment. From this judgment, defendants ap- tiff has prosecuted a cross-appeal. pealed to the circuit court, where they renew- [1] 1. The first reason urged upon us by ed their demurrer to the petition, which was defendants for a reversal is that the action again overruled, and they were permitted to was not authorized by the auditor, as refile an amended answer, over the objection quired by section 4263–4, Kentucky Statand exception of plaintiff, in which they al- utes. The petition bears the indorsement of lege: (1) That when this action was filed, the approval by the supervisor of revenue and at the time of the settlement with and agents, whom the auditor is authorized to payment to the sheriff set out in their orig-appoint by section 4258, Kentucky Statutes, inal answer, the county clerk did not have and whose duty, it is therein prescribed, and was not keeping a book in which to re- shall be to supervise the action of each revcord the values of inheritances, devises, be- enue agent in the state; "and no action or quests and other interests subject to the pay- proceeding shall be instituted by any revment of taxes, as required by section 4281q, enue agent until the same is approved by Kentucky Statutes; that the Clay county said supervisor or the auditor of public accourt had not appointed any appraiser or ap- counts.” It will therefore be seen that it is praisers to value the land, as required by expressly provided by statute that the resection 4281k, Kentucky Statutes; that the quired approval by the auditor, before the county clerk had made no statement to the institution of an action by a revenue agent, sheriff, as provided by section 4281p, cover- may be made either by the auditor himself ing the inheritance tax due from the estate or his appointee, the supervisor of revenue of William H. Sevier; that the sheriff had agents, whose duty it is to supervise such not notified the county attorney, as required agents; and the approval by the latter was by section 42810; that the county attorney all that was required. had instituted no suit to collect the inherit- [2, 3] 2. The next insistence is that the ance tax due from decedent's estate; and settlement with the sheriff, made after the that appellants and the county officials alike suit was instituted, was a full accord and were ignorant of the inheritance tax law and satisfaction of the claim sued on. This conits requirements. (2) That the value of de- tention is manifestly without merit, since cedent's real estate, at the time of his death, the sheriff is authorized to accept payment did not exceed $3,000. (3) That the board of of and receipt for inheritance taxes only supervisors of Clay county fixed the value after the property liable to such taxes has of decedent's real estate for taxation for been valued, or about the value of which 1914 at $2,600; and that this action of the there is no question, and he has no authorboard of supervisors "fixed, concluded, and ity to fix the value of property for the purdetermined the value of such real estate upon poses of such taxation, this duty being imwhich plaintiff should collect the inheritance posed by section 4281k, Kentucky Statutes, tax.” Upon motion of plaintiff, after its de- upon appraisers appointed by the county murrer to the answer as amended had been court whenever the value is uncertain. When overruled, every allegation of the amended such a valuation has not been fixed and the answer was stricken except the allegation, amount certified to the collecting officer be"They say that the value of said real estate fore the expiration of the time in which at the death of said William H. Sevier did same is required to be done and the taxes not exceed in value $3,000”; and the court, paid thereon, revenue agents are expressly upon its own motion, entered the following authorized, by an act approved March 24, order:

1916, upon the approval of the auditor, to “Ordered that this cause be assigned to the institute an action such as this one to se17th day of the present term of this court for cure the assessment and certification to the trial as to the value of the lands of decedent, proper collecting officer of property thus William H. Sevier, as of the date of his death, omitted ; and the sheriff has no authority, November, 1913, before a jury"

either before or after the institution of such to which ruling of the court both plain an action, to fix the value of such proptiff and defendants excepted. The value of erty for the purpose of determining the the land at the time of Sevier's death, the amount of inheritance taxes due thereon. only issue of fact, was submitted to a jury Nor could he, even if the value of the property and by them fixed at $6,000, whereupon the were certain, by the acceptance of the court entered a judgment, remanding the amount of taxes due, relieve a delinquent case to the county court, with directions to party of liability for penalties which had enter a judgment assessing the personal theretofore accrued and were due the rev

| property at $8,439.35 and the real estate atenue agent in an action already instituted.

[4] Appellants also contend in this connec-, ants is that the circuit court erred in subtion that they were ignorant of the law, as mitting to a jury the question of the value were also the county officials who failed to of the real estate, over the objection and experform their duties in reference to the as- | ception of the defendants. In Stearns Coal sessment and certification of decedent's prop- & Lumber Co. v. Commonwealth and Comerty for the inheritance tax, and that they monwealth v. Leslie County, supra, this questherefore, ought not to be charged with pen- tion was considered, and it was held that alties. It surely needs no argument or cita- the provisions of the statute nowhere give tion of authority to prove that neither igno- room for the intervention of a jury, and that rance of the property owners nor that of the a trial by a jury, over the objection of the assessing officers, nor the failure of the lat- appellant, was a denial of a trial as providter to perform their duty, can be urged as a ed by law. As this will necessitate a reverdefense to an action to enforce the assess- sal of the judgment, it is not necessary to ment of omitted property and the collec- consider the evidence before the jury upon tion of the taxes due the state, or the penal- the question of the value of the land. ties due the revenue agent for his services in [8] 5. Upon the cross-appeal, it is insisted compelling the assessment of the omitted by plaintiff that the defendants were limitproperty and payment of the taxes due ed, upon appeal to the circuit court, to the thereon.

defenses presented in the county court, and [5] Equally without merit is the argu- that the court erred in permitting defendants ment that, after this suit had been institut- to file the amended answer contesting the ed, it was the duty of the court to appoint value of the real estate alleged in the petian appraiser to fix the value of the real es- tion. This contention cannot be sustained, tate under section 4281k, Kentucky Stat- since, under the express provisions of Civil utes, as this section evidently applies to ex Code, SS 700, 726, and Kentucky Statutes, $$ parte proceedings, as is shown by provision 4241, 4260, on an appeal to the circuit court for notice by mail to all known interested from the county court, in proceedings such parties, and has no application when a suit as this for the listing of omitted property has been filed by a revenue agent, since all for taxation, the trial is to be de novo (Comissues that are raised in such an action are, monwealth v. Reed, 121 Ky. 432, 89 S. W. by sections 4241 and 4260, to be tried and de- 294, 28 Ky. Law Rep. 381); and, while plaintermined by the court. Stearns Coal & Lum- tiff cannot amend his pleading so as to set ber Co. v. Commonwealth, 167 Ky. 51, 179 up a new and independent cause of action, S. W. 1080; Commonwealth v. Leslie Coun- since the action to be tried on the appeal ty, 174 Ky. 10, 191 S. W. 657.

must be the same as was tried in the lower [6] 3. The contention of appellants that court, the defendant has the right to make the valuation of the real estate fixed by the all the defenses he has, and it is within the board of supervisors of Clay county for 1914 discretion of the court in which the appeal is conclusive of its value in this action is is pending for a trial de novo to allow the clearly untenable, since the statute expressly defense changed or a new defense to be made provides for a different method of assessing as if the case had been originally brought in property subject to inheritance taxes and by that court. Willis v. McNeal, 8 Ky. Law Rep. different officials and regardless of its assess-411; Southern Lumber Co. v. Wireman, 41 ment for ordinary taxes. It is therefore ap- S. W. 297, 19 Ky. Law Rep. 585; Roberts v. parent that the only defense or issue raised Abner, 42 S. W. 337, 19 Ky. Law Rep. 887. by the amended answer was as to the value Wherefore, the judgment is affirmed upon of the real estate, and the court did not err the cross-appeal, and upon the original apin striking out all other allegations.

peal is reversed and remanded for proceed[7] 4. The next objection of the defendings consistent herewith.

.

(181 Ky. 183)

wealth, appellant and Collins were engaged WINBURN V. COMMONWEALTH, in a game of craps, and appellant won all (Court of Appeals of Kentucky. June 18, 1918.) the money that Collins had. Collins then 1. CRIMINAL LAW Cm1144(0)-APPEAL-PRE- borrowed a dollar from McDermott and the SUMPTIONS-RECORD.

game was changed from craps to cards. In Order overruling a motion for change of this game appellant lost not only what he had venue, showing that hearing was had on the motion, raised the presumption on appeal that won, but all the other money that he had. evidence was introduced thereon.

Thereupon appellant told McDermott, who 2. CRIMINAL LAW @m1117 - APPEAL - SCOPE was sitting near, that he owed him $1.25, and

OF REVIEW.

demanded that McDermott pay him. McThe court, on appeal from denial to accused of a change of venue, cannot review the pro- Dermott claimed that he did not owe appriety of the order in the absence of the evi- pellant any money, but had paid his board to dence, where it appears that a hearing was had appellant's wife. Appellant then slapped Mcon the motion at which evidence was introduced. Dermott over, and Collins remonstrated with 3. HOMICIDE 179–EVIDENCE-INSANITY OF him and told him that they did not want to PARENTS.

To authorize admission of evidence of in- have any trouble. Appellant drew his pistol sanity in the family of accused there must be and told Collins that he was as good a man independent testimony to show that accused was

as he was and would fill him full of holes. himself insane at the time of the homicide. 4. CRIMINAL LAW Om889 – TRIAL - CORREC- He then shot and killed Collins. According TION OF VERDICT.

to the evidence for appellant, he had won Since if the verdict does not conform to law some money that lay on the ground. When it is proper to have the jury reform it before its be went to draw in the money Collins stampdischarge, where jury found “defendant, Jim Winburn, guilty, and fix his punishment 'at 99 ed him on the hand and kicked him on the years, without a pardon," it was proper to re- chest. He then saw his life was in danger quire a reformation to read “We, the jury, find and fired the gun. It further appeared that the defendant, James Winburn, guilty, and fix his punishment at confinement in the' peniten- appellant was a cripple and had been operattiary for life, without pardon.”

ed on several times. 5. CRIMINAL LAW Om886VERDICT-RECOM- The first error assigned is the refusal of MENDATION.

the court to grant appellant a change of Jury's verdict of guilty with punishment of

venue.

His application was based on the imprisonment, without pardon, was as to the words "without pardon" a mere recommenda- claim that it was necessary to remove him to tion not invalidating the verdict, and such rec- an adjoining county to escape mob violence, ommendation could be disregarded by the court. and that the feeling against him in Carroll 6. HOMICIDE Omw 313(4) — VERDICT — SUFFI- | county was such that he could not obtain a CIENCY.

In prosecution for murder, where jury was fair trial there. His application was supporttold that if it found accused guilty of murder his ed by his own affidavit, and the affidavits of punishment should be death or confinement in two residents of Carroll county. It is inthe penitentiary for life, a verdict of guilty with imprisonment for life was sufficient under sisted that appellant was entitled to a change Cr. Code Prac. § 257, subd. 2, though it did not of venue because his application and the supspecifically find accused guilty of murder. porting affidavits were sufficient, and it does 7. CRIMINAL LAW Cmw 822(6)-INSTRUCTIONS- not appear that they were denied. The recCONSTRUCTION AS WHOLE-SELF-DEFENSE.

Instruction that if accused shot deceased ord, however, shows that the following order not in his necessary or in his reasonably appar- was entered: ent defense he was guilty of murder was not "The motion of the defendant for a change of erroneous, when considered with following in- venue coming on for hearing and heard, and struction that he should be acquitted if the jury the court, being advised, overruled the said thought that he then believed, or had reasonable motion, to which ruling of the court defendant grounds to believe, that he was then in danger

excepted.” of death or great bodily harm at the hands of the deceased.

[1, 2] Since this order shows that a hearAppeal from Circuit Court, Carroll County. ing was had on the motion, it will be presum

James Winburn was convicted of murder, ed, in the absence of anything to the conand he appeals. Affirmed.

trary, that evidence was introduced and conFrank C. Greene, of Carrollton, and Scott sidered by the court. The evidence, however, & Hamilton, of Frankfort, for appellant. does not appear in the record, and in the abChas. H. Morris, Atty. Gen., and Henry F. sence of the evidence we cannot review the Turner, Asst. Atty. Gen., for the Common propriety of the court's action in refusing the wealth.

change of venue.

[3] Another error relied on is the refusal CLAY, C. This is an appeal by James Win- of the court to permit appellant to prove that burn, who was convicted of murder and given his mother and other relatives were insane. life sentence.

To authorize admission of evidence of insanThe homicide occurred at the ball park in ity in the family of the accused there must Carrollton. Besides appellant and the de- be other independent testimony to show that ceased, Albert Collins, Hugh Arvin, Thomas he was himself insane at the time of the homMcDermott, and Roy Ellis were present. Ac-icide. Murphy v. Çommonwealth, 92 Ky. 485, cording to the evidence for the common- | 18 S. W. 163, 13 Ky. Law Rep. 695; State v.

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