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ficulty he styled the pleading, petition, ap- | for admission to bail, and to have it returned plication, and motion. before him.

[4, 5] The judgment in the original action was not void, but merely voidable at the option of the infant, Loraine Holland, and to have this relief she was required to, and did, make a direct attack on the judgment. It was neither void nor voidable as to the other defendants and parties to it. They were and are all bound by the judgment. Appel-bourville, for defendant. lants, the purchasers at the decretal sale, were required to look to the title; the rule of caveat emptor applying in its full force. The purchasers will take the whole estate sold, except the undivided interest of the infant, Loraine Holland. She and the purchasers are joint tenants in the farm. The trial court erred in setting aside the entire judgment and sale had thereunder. Only that part of the judgment which affected the interest of the infant, Loraine Holland, should have been vacated; otherwise the judgment and sale should have been sustained and confirmed.

Petition for writ of prohibition by the Commonwealth of Kentucky, on the relation, etc., against W. H. Carmackle, Police Judge, etc. Petition dismissed.

Chas. I. Dawson, Atty. Gen., for plaintiff.
R. N. Jarvis and H. H Owens, both of Bar-

For the reasons indicated, the judgment appealed from is affirmed as to the infant, Loraine Holland, and reversed in all other respects for proceedings consistent with this opinion.

(192 Ky. 171)

COMMONWEALTH ex rel. DAWSON, Atty.
Gen. v. CARMACKLE, Police Judge.

(Court of Appeals of Kentucky. June 24,
1921.)

1. Courts 207 (5)-Court of Appeals has jurisdiction to grant writ against police court. Under Const. § 110, the Court of Appeals has jurisdiction to issue a writ of prohibition to a police court, despite Civ. Code Prac. §§ 474, 479, clothing the circuit courts with jurisdiction to grant such writs against county, quarterly, fiscal, and police courts.

2. Prohibition 3(1)-Jurisdiction to grant writ will not be exercised when applicant has other adequate remedy.

The writ of prohibition in the Court of Appeals is a discretionary one, and the jurisdiction of the court to grant such writ will not be exercised when the applicant has another adequate remedy.

3. Habeas corpus 46-Police court judge authorized to issue writ and have it returned before him.

Where there had been no examining trial of a defendant charged with murder, and no order of any examining court had been made denying him the right to execute bail, while at the time of defendant's application for writ of habeas corpus and when it was proposed to he heard there was no circuit judge in the county, under Cr. Code Prac. § 399, subsec. 2, and section 416, the judge of the police court was authorized to issue writ of habeas corpus

for the crime of murder in the Knox circuit HURT, C. J. John Bailey was indicted court, and by an order of the same court was being held in the custody of the jailer of Harlan county upon the charge of which he was indicted. For the purpose of being admitted to bail for his appearance to answer the indictment, he procured the judge of the circuit court for the district of which Harlan county is a part, to cause the jailer of Harlan county to produce him before the judge by a writ of habeas corpus. After a

hearing before the circuit judge upon the writ, and the return thereto, the judge denied him the right to execute bail, and remanded him to the jailer. In the meantime, the Knox circuit court, wherein the indictment was pending, granted a change of venue of the prosecution under the indictment to the circuit court of Rockcastle county, and Bailey was by the order of the Knox circuit court, transferred to and delivered into the custody of the jailer of Rockcastle county, to be there held to answer the indictment. Thereafter, at a term of the Rockcastle cirof Bailey continued, and he was again recuit court, the action was upon the motion his trial at another term of the court. manded to the custody of the jailer to await Thereafter, and after the adjournment of the Rockcastle circuit court, and while the judge of that court was absent from Rockcastle county, Bailey procured the judge of the Mt. Vernon police court to issue a writ of habeas corpus in his behalf, commanding the jailer to bring him before the judge of the county court for the purpose of having a hearing before him, as to whether or not he should be admitted to bail. For a reason not explained, the writ was not returned before the judge of the county court, but before the police judge, and he was proposing to hear the writ and the issue upon the return thereon. Mt. Vernon is the seat of justice for Rockcastle county, and the jail wherein Bailey was confined is situated in the town of Mt. Vernon. To prevent the police judge from hearing the writ, a petition was filed in this court for a writ of prohibition, restraining the police judge from so doing, upon the ground that he had no jurisdiction to do so, and a temporary writ was granted against the judge of the police court to restrain his

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

(232 S.W.)

actions, until the further order of this court. The foregoing facts all appear from the petition, and they are the only facts stated in the petition and the answer of the defendant is such that it does not put anything in issue.

when by law he was entitled to bail. And it will be presumed, in the absence of a contrary showing, that the purpose of determining whether or not he was entitled to execute bail was the purpose of the writ of habeas corpus. If the circuit court had by an order either admitted him to bail, or had passed upon the question and denied him admission to bail, such order could not be revised by a police, or any inferior judge, and under such circumstances such a judge would have been without any kind of authority to have granted or to have heard a writ of habeas corpus in behalf of the prisoner. Bethuram v. Black, 11 Bush, 628. In the instant case, however, it is not shown that the circuit court had made any order or had heard any application upon part of the prissubject been made and adjourned without any order upon that subject. Section 426 of the Criminal Code provides that, if an examining court has failed to grant bail to a prisoner charged with a public offense, that

[1, 2] The defendant has demurred specially to the petition upon the ground that this court is without jurisdiction to grant a writ of prohibition against the judge of a police court, and relies for his contention upon | sections 474 and 479 of the Civil Code, and section 25 of the Criminal Code, by which he contends that exclusive jurisdiction has been granted to the circuit courts to grant writs of prohibition against inferior jurisdictions. Those sections of the Codes, it is true, clothe the circuit courts with jurisdiction to grant writs of prohibition against county, quarter-oner for bail, nor had any motion on that ly, fiscal, and police courts and justices of the peace, but the jurisdiction of this court in such matters is bestowed by section 110 of the Constitution, and cannot be affected by legislative action, such as the provisions of the Codes. The writ of prohibition, how-a writ of habeas corpus because of imprisonever, in this court, is a discretionary one, and its jurisdiction to grant one will not be exercised when the applicant has another adequate remedy. In the instant case, the circuit court was not in session, its judge was absent from the county, and could not be applied to for a temporary preventive order, as provided by section 476, Civil Code. The jurisdiction to restrain by a writ of prohibition an inferior jurisdiction has often been exercised by this court. Board of Prison Commissioners v. Crumbaugh, Police Judge, etc., 161 Ky. 540, 170 S. W. 1187; Rush v. Denhardt, 138 Ky. 238, 127 S. W. 785, Ann. Cas. 1912A, 1199; I. C. R. R. Co. v. Rice, 154 Ky. 198, 156 S. W. 1075.

ment under the order of such a court, shall not be returnable before or tried by any other officer than the judge of the court before which he was held to answer. In this case, however, there had been no examining trial, and no order of any examining court had been made which denied the prisoner the right to execute bail. The petition shows that there was, at the time of the application for the writ, and at the time it was proposed to be heard, no circuit judge in the county. Under subsection 2 of section 399, a judge of a police court is authorized to issue a writ of habeas corpus under such circumstances. Section 416 of the Criminal Code provides that a writ of habeas corpus, regardless of [3] Whether or not the temporary writ who issues the same, shall be returned before granted herein should be made permanent, as a matter of course, depends upon whether and tried by the circuit judge, if there is the defendant was invested with jurisdiction and able to act, and, if none, it shall be one at the time in the county, and qualified or judicial power to issue and to hear the and able to act, and, if none, it shall be or judicial power to issue and to hear the returned before the judge of the county writ of habeas corpus, and beyond question, when it is sought to prohibit an officer from court, if he shall be in the county at the performing a duty which, under certain cir- the absence or disqualification or incapacity performing a duty which, under certain cir- time, qualified and able to act, and except in cumstances, he has the jurisdiction to per- to act of both the circuit and the county form, upon the ground that he has not juris-judge can it be returned before or heard by diction, it is incumbent upon the one assert

ing that the officer is acting beyond his

jurisdiction to show that such is the fact. Section 399 Criminal Code, provides thatA writ of habeas corpus "shall be issued upon a petition on behalf of any one showing, by affidavit or otherwise, probable cause to believe that he is detained without lawful authority,

or is imprisoned when by law he is entitled

to bail."

That Bailey was being detained by lawful authority there can be no doubt, and the purpose of the writ as alleged was that he was claiming that he was being imprisoned

the judge of the police court. There is no

statement in the petition, nor is the fact de

veloped at all, as to whether the county judge was present in the county and qualified and able to act, and we can only presume, in the absence of such showing, that the county judge was also absent from the county, as well as the circuit judge, and under such circumstances the judge of the police court would be authorized to hear the return of the writ. The only grounds upon which it is averred that the police judge was without jurisdiction in the premises was that a previous writ of habeas corpus had been

returned before and. heard by a judge of a 'tance, defendant claiming that a violent attack circuit court, though not the one who pre-from the rear and front of the shop was made sided in the county where the prisoner was simultaneously, held that the situation was not in confinement. Such a hearing was not the such as to warrant the shooting as a matter same kind of hearing as is referred to as an examining court by section 426 of the Criminal Code. Section 429 of the Criminal Code provides as follows:

"The judgment upon a trial under a writ of habeas corpus shall not prevent the issuing of another writ for the same cause, nor be given in evidence on the trial under a second writ; but no officer, except the judge of a circuit, criminal, chancery or common pleas court, shall try a writ of habeas corpus who has tried a former writ issued for the same cause."

The purpose of this section is to enable a prisoner to have a second writ of habeas corpus for the same cause; that is, upon the hearing of the first writ, if his application is upon the ground that he is being imprisoned when he is entitled to bail. Facts may have been developed since the hearing of the first writ, which shows him entitled to be admitted to bail, which were not attainable upon the hearing of the first writ, and the statute, as it will be observed, does not prohibit an officer from trying a writ of habeas corpus, who has not tried a former writ, issued

for the same cause. If the same officer has previously heard a writ granted for the same cause he cannot hear a second one, unless he be a judge of a circuit court. In Creekmore v. Com., 5 Bush, 312, a prisoner was in confinement under a charge of murder. The cir

cuit court had adjourned without making any order with reference to the question as to whether or not he was entitled to bail. Two justices of the peace, there being no circuit judge nor county judge in the county, were authorized to cause the prisoner to be brought before them, and to admit him to bail. Under the facts and circumstances as developed by the petition and its exhibits in this case, we are unable to discover wherein the defendant was without jurisdiction to grant or to hear the writ of habeas corpus. We cannot presume that in such case the officer would abuse his discretion and improperly admit the prisoner to bail. The petition is therefore dismissed.

(192 Ky. 223)

STEELE v. COMMONWEALTH. (Court of Appeals of Kentucky. June 24, 1921.)

1. Homicide 272-Shooting in self-defense held not warranted as matter of law.

In a prosecution for manslaughter, where it appeared that defendant, while in his barber shop at night, shot deceased, who, with several others, had knocked on the door for admit

of law.

2. Homicide 123-When killing to prevent breaking into house justifiable, stated.

While a mere demonstration, or even threat, to break into a house will not excuse a homi

cide by the occupant, a man is justified in killing a burglar or thief who is at the time committing a felony by attempting to break into his

house.

3. Criminal law 1159(2)-Conviction will not be disturbed on appeal, unless palpably against weight of evidence.

A conviction will not be interfered with upon appeal, unless the verdict is palpably against the weight of the evidence.

4. Homicide

276-Facts as to self-defense held for jury, where evidence conflicting.

Where defendant, while in his barber shop at night, with several others was startled by decedent, who, with several others, was atviolent knocks at the door, and shot, killing tempting to gain admission, held, that it was for the jury to determine the facts under contradictory evidence.

5. Indictment and information

171-Accus

ed may be convicted by evidence as to offense charged alone.

When accused has been tried for one offense, he is subject to conviction, if at all, by evidence showing he is guilty of that offense alone.

6. Criminal law 369 (3)-Evidence of other offenses held improperly admitted.

dence relating to other entirely disconnected In a prosecution for manslaughter, evioffenses showing no motive for the crime charged, nor committed to enable accused to commit the offense on trial, or to enable him to conceal it, held improperly admitted. 7. Witnesses 352-Evidence as to bad character to impeach witness should be directed to time of trial.

In order to impeach a witness, evidence of bad character should be directed to the time of trial, and to this end, under proper circumstances, evidence of previous bad character is competent.

8. Witnesses 352- Impeaching evidence must be supported by proof that character is bad at time of trial.

To impeach a witness by showing bad character, evidence of bad character at a time long anterior to the trial should not be admitted until a basis is made by other proof tending to show that the character is then bad.

330

9. Criminal law 338 (6)-Witnesses
(1)-Cross-examination of witness as to ru-
mors of particular acts of misconduct by de-
fendant admissible to test credibility.

Where there is competent evidence of defendant's good reputation, inquiry may be made of witnesses on cross-examination of rumors

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

(232 S.W.)

of particular acts of misconduct on the part of
defendant to test the accuracy and credibility
of the witness, and not as substantive evidence
of defendant's guilt.
10. Criminal law

1169(11)-Improper evidence of other offenses will not reverse, unless defendant prejudiced.

Evidence of other offenses will not authorize a reversal, unless it appears from the whole record that defendant's substantial rights were thereby prejudiced. II. Homicide

injury or death. After wandering in many states for about 14 years, he surrendered to an officer in Los Angeles, and returned to this state to stand trial. He left the county to save a sick father the strain of knowing his son had been arrested and must be tried for murder.

It is the theory of the commonwealth that Alonzo and Bob Bledsoe, brothers, in company with the Brummitt brothers (Sam and John), had been celebrating Christmas, and 300 (3) - Instruction as to two of them were burned with fireworks. self-defense held insufficient. One Pleas Setzer was thought by some to possess the power of being able to blow "thresh" out of children's mouths, and the two injured in the battle of Roman candles reasoned that if Pleas could thus cure "thresh" he could blow the fire from their wounds. This party was in quest of "Doctor" Setzer, and upon inquiry at a house of ill fame they were informed he was at the barber shop. When they reached the shop they knocked for admittance, a gentle knock, we are told,

In a prosecution for manslaughter, where defendant shot deceased claiming that the act was in self-defense from an attack by deceased and others, an instruction justifying the shooting if defendant had reasonable grounds to believe he was in danger of bodily harm at the hands of deceased alone held erroneous, as failing to justify the shooting to prevent danger at the hands of the party jointly engaged in the attack.

Appeal from Circuit Court, Whitley Alonzo Bledsoe placed his hands on the lower County.

William P. Steele was convicted of voluntary manslaughter, and he appeals. Reversed

and remanded.

part of the window, and said, "Pleas, let me in." At this instant, appellant, without having spoken a word, punched his pistol through the window glass and fired. The ball struck Alonzo Bledsoe in the shoulder, and lodged

Stephens & Steely and H. C. Gillis, all of near the heart, from the effects of which Williamsburg, for appellant.

Chas. I. Dawson, Atty. Gen., Chas. W. Logan, Asst. Atty. Gen., Jos. B. Snyder, of Williamsburg, and R. L. Pope, of Knoxville, Tenn., for the Commonwealth.

QUIN, J. It was the night before Christmas, 1906, that marked the tragedy giving rise to the present prosecution, and in which appellant took the leading rôle. The scene was staged at a barber shop in Corbin. The setting as depicted by counsel for appellant

may be thus summarized:

wounds he died the following day.

Appellant was convicted of voluntary manslaughter and sentenced to an imprisonment for five years. The insufficiency of the evidence to support the verdict is the first point urged for reversal.

Neither expedition was engaged in a laudable mission. The quartette (Bledsoes and Brummitts) had doubtless engaged in rather a dangerous and violent celebration, firing at each other; they had spent some time at the Frazier house of ill repute, whisky was in evidence there. Between Fraziers and the shop they engaged in childish pranks; they played leap frog, and two of them got the wheels of an old wagon from a nearby blacksmith shop; the running of these against the rear of the building accounted for some of the noise.

Having closed his shop for the night, and just after he got outside, appellant met two men, who asked to go into the shop to get warm. About the same time three little girls, thinly clad and shivering, chanced that way, and asked permission to go inside for a like purpose. Appellant, unable to resist their appeals, unlocked the door, and all [1] Because Setzer had never seen his fawent in. In order not to encourage them to ther, the latter having died before the birth stay too long, he did not light the lamp. of his son, rumor had it, he could blow Their season of quietude and comfort was of "thresh" from children's mouths. Many short duration; the stillness of some 10 min- mothers brought their afflicted children to utes was interrupted by a violent attack from him for this purpose, but he was not impressthe rear, and in front of the shop. Appel-ed with the ability to accomplish the results lant's nerves were not of steel; he became attributed to him; he was not aware of this frightened, took a pistol out of the drawer, and walked to the front window. About this time the glass was broken in; he thought he heard some one say: "If powder will burn, I will blow or burn you up." He fired a shot, dashed out of the door, and ran away. He had no motive other than saving himself from what he believed imminent danger of

reputed power, nor did he have much confidence in the success of his efforts. Seeking the fire blower was more an excuse than the reason for the visit to the shop. The alleged burns did not prevent a sojourn of the quartette at Fraziers, nor interfere with their frolic between that point and the shop. While the knock on the door for admittance

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

was probably not an ordinary one, nor the call to Pleas made in a moderate tone, as stated by one of the witnesses, we cannot as a matter of law say the situation was such as warranted the precipitate action of appellant.

We are not impressed with the eleemosynary propensities of appellant in affording warmth and shelter to the thinly clad, shivering trio. They were youthful habitués of the underworld, entertained in a dark room behind locked doors. They were inmates of the Frazier house, which was located just a short distance from the barber shop, and, had they oeen in search merely of warmth, the most natural thing for them to have done would have been to go to their abiding place. They had not been out in the weather for any length of time; besides, had the temperature been of such severity as to impel them to stop for warmth so near their headquarters, it is hardly probable the quartette would have been disposed to play on the way as long as they did. It was a moonlight night, and the sextet from within could see those on the outside. None of the latter was arm.ed. Before any of those inside could open the door the pistol was fired.

[2] While a mere demonstration, or even threat, to break into a house will not excuse a homicide by the occupant (Wright v. Commonwealth, 85 Ky. 123, 2 S. W. 904, 8 Ky. Law Rep. 718), a man is justified in killing a burglar or thief who is at the time comitting a felony by attempting to break into his house. But a person has not the moral or legal right to kill another merely because, in the night, he comes upon his premises, or even knocks at the door of his home. The trigger of a pistol may be pulled in the fraction of a second, but the soul of the victim never returns. The taking of one's life is a serious matter, and the occupant of premises who shoots or kills an intruder or trespasser to excuse or justify his conduct on the ground that the person killed was on the premises for the purpose of committing a felony, or attacking with evil intent the person in possession, must introduce some evidence conducing to the establishment of this defense. Leach v. Commonwealth, 129 Ky. 497, 112 S. W. 595, 33 Ky. Law Rep. 1016.

[3] A judgment of conviction will not be interfered with upon appeal unless the verdict is palpably against the weight of the evidence. Utterback v. Commonwealth, 190 Ky. 138, 226 S. W. 1065; Banks v. Commonwealth, 190 Ky. 330, 227 S. W. 455; Finney, etc., v. Commonwealth, 190 Ky. 536, 227 S. W. 999; Fleming v. Commonwealth, 190 Ky. 810, 228 S. W. 407.

[4] As to what occurred at the barber shop immediately preceding the killing, the evidence is conflicting, and especially is this the case in regard to the simultaneousness of the breaking of the window glass and the shot. It is for the jury to determine the facts when

the evidence and circumstances are contradictory, and where, as here, there is proof supporting the verdict, so that it cannot be said the judgment is flagrantly against the weight of the evidence; no reversal is authorized.

It is next said a reversal should be ordered because of the misconduct of counsel for the commonwealth in asking certain incompetent and prejudicial questions relating to other alleged offenses, five in number, committed by accused other than the charge upon which he was being tried. As succinctly stated by counsel:

"The jury had before them what amounted to evidence in their minds that appellant had killed a man; that he ran away because he knew he was guilty; that he had been indicted for adultery with one of the Frazier women, and for having committed a common nuisance with another; that he furnished the Frazier women a house in which to ply their immoral trade; that he left his first wife and married another woman without à divorce; that he abused his second wife, and was arrested for it, and brought into court; and, last, of taking his wife's bedclothing and making a harlot's bed of them."

The court sustained objection to some of the questions, and overruled the others, but, before submitting the case to the jury, they were admonished not to consider the evidence, (a) as to bigamous marriage, and (b) the It is urged trouble with his second wife. that the admonition was not sufficient to overcome the prejudicial effect of the incompetent testimony.

As said in Thomas v. Commonwealth, 185 Ky. 226, 214 S. W. 929:

"The general rule is that, on the prosecution of a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime, wholly independent of that for which accused is being tried, is irrelevant and inadmissible. There are sevirrelevant and inadmissible. eral well-recognized exceptions to this rule, however, and these exceptions are founded on as much wisdom and justice as the rule itself. The general rule does not apply where the evidence of another crime tends directly to prove defendant's guilt of the crime charged. Evidence of other crimes is admissible to prove particular matters, such as the identity of accused; also, the motive, intention, or knowledge. Such evidence is likewise admissible when two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other."

[5] When accused has been tried for one offense, he is subject to conviction, if at all, by evidence showing he is guilty of that offense alone. The soundness of this rule will hardly be questioned. If it was permissible to prove that defendant was guilty of crimes in no way connected with the one for which he was being tried, conviction would be had upon a particular charge by combining the evidence of it with the evidence of other

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