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and fixed his punishment at confinement in pany in the city." This last statement was the penitentiary for one year. The chief competent, and the jury might have drawn ground of reversal relied on here is the in- the conclusion from it that no such concern competency of certain evidence admitted to had been established or was in operation in go before the jury. It is conceded that the the city of Lexington. But they might not statements were in fact made by appellant have reached such a conclusion, and probto Morgan as substantially charged in the ably would not, from this testimony alone; indictment, namely, that there was a collect- and hence the importance of the statements ing company located in Philadelphia, wnown of the witness to the effect that the Lexingas the Continental Collecting Company; that ton police had answered in the negative said company had a branch agency in Lex- when asked if there was any concern doing ington, and an office there; and that appel- | business in the city of Lexington under the lant was an authorized agent of that com- name of the Continental Collecting Company. To convict the appellant, however, of pany. The appellant was therefore probably the crime charged, the commonwealth must convicted on the statements of the Lexington have established the falsity of one or more police, as testified to by the marshal of of these statements. It must appear that Richmond. It does not even appear that the there was no such collecting company lo- emphatic and conclusive answer of the Lexcated in Philadelphia, or that such com- ington police was based on an investigation pany had established and were operating in of the matter at hand. But, whether it was its office no such branch agency in Lexing- or not, the accused was entitled to meet the ton, or that the appellant was not an au- witnesses face to face, and cross-examine thorized agent of such company. On the them as to their alleged knowledge. The testifirst and last propositions the commonwealth mony is incompetent, and highly prejudicial. introduced no proof whatever. In the nature If it was not true, as testified by the appelof things, it was a difficult thing to prove

lant and his brother, that they had an ofthese negatives. Nevertheless, that there fice at No. 125 South Broadway, in Lexingwas no such agency in Philadelphia, or, if ton, Ky., and had also engaged Ross as the so, that appellant was not its authorized attorney for the company, and secured an agent, must be made to appear before a con- office with him, at the time of the transacviction could be had on account of the ap- tion with Morgan, the falsity of the statements pellant's affirmative statements that such a could easily have been established. For the state of facts existed. The appellant and his reasons indicated, the judgment is reversed, brother testify to the establishment of such with directions to grant the accused a new an agency in Philadelphia in 1893, and state trial, and for proceedings consistent with this that they were its authorized agents; and,

and, opinion. even if we concede the right of the jury to disregard this testimony, the commonwealth is yet without any proof showing that the

SCHWERMAN v. COMMONWEALTH. representations of the appellant to that effect are false. Without regard, however, to

(Court of Appeals of Kentucky. Nov. 27,

1895.) the truth or falsity of these statements, the case is made out if it appear that the Con

INTOXICATING LIQUORS – LICENSE - STATUTE OF

LIMITATIONS-RUNNIXG OF STATUTE tinental Collecting Company had no branch

-RELIEF FOR FRAUD. agency in Lexington for the purposes de- 1. Authority to grant liquor licenses in scribed in the indictment, and it was to this towns or cities is conferred on the municipal ofphase of the question that the state directed

ficers, and not on the county court, whose power

to issue licenses applies only to a "neighborits proof. The only testimony, however, in- hood." troduced on this point was that of a witness, 2. St. § 2551, provides that "a surety in any who proved that he was the chief marshal

obligation

shall be discharged from of the city of Richmond, and some 25 years

all liability thereon when seven years shall have

elapsed without suit after the cause of action ago resided in Lexington, Ky.; that prior to accrued." Section 2519 provides that, in acthe arrest of the appellant and his brother tions "for relief for fraud," the cause of action he had gone to Lexington, a city of some

shall not be deemed to have accrued until the

discovery of the fraud. Held, that an action twenty-five or thirty thousand inhabitants,

against the sureties on the official bond of an and (using his own language) "inquired of officer for misappropriation of money collected the police if there was any concern doing

for license fees is one "for relief for fraud,"

where the officer, in his official report, misrepbusiness in the city of Lexington under the

resented the number of licenses issued. name of the Continental Collecting Company. They told me, 'No.'” To the admission of

Appeal from circuit court, Franklin counthis testimony the appellant "excepted," and

ty. at once moved to exclude it from the jury.

“To be officially reported.” The motion was overruled, and an exception

Action by the commonwealth of Kentucky saved. The witness further stated that he

against Katherine Schwerman and others. "looked for the office of the Continental Col

From a judgment for plaintiff, defendant lecting Company, made inquiry of several

Schwerman appeals. Affirmed. business men, and also of the police; but T. M. Hill, for appellant. W. J. Hendrick was unable to find the office of such a com- and Ira Julian, for the Commonwealth.

cle

LEWIS, J. August 29, 1882, Thomas Jones, not at all dependent upon an order of the clerk of Campbell county court, and his sure- county court. On the contrary, express proties, Frank Schwerman and others, executed vision is made by statute in such cases for a bond to the commonwealth of Kentucky, collection by the clerk, independent of the covenanting he would faithfully discharge county court, from the person licensed, of the all duties of said office, and pay over in due state tax prescribed, in addition to the tax time, to the proper person, any money re- imposed for benefit of the city or town. The ceived by him as clerk. July 29, 1893, the particular conditions in which it is provided commonwealth instituted this action against the county court shall have exclusive jurisJones and his sureties, Katherine Schwer- diction to grant licenses to sell by retail liquor man, widow and sole devisee of said Frank plainly apply to the county, or, in language of Schwerman, then deceased, being also made the statute, to "a neighborhood,” and not to defendant. In the petition it is alleged that incorporated towns or cities, when authority during the period from September, 1883, to to grant or withhold coffee-house, or what September, 1885, Jones, as clerk, had col- is commonly understood as "saloon," licenses, lected a stated amount of saloon-license is conferred upon the municipal officer or fees which he had failed to pay over or re- officers thereof. It was not therefore necesport to the auditor, or in any way account sary for plaintiff in this case to allege, nor for, as by law it was his duty to do, and could it be truthfully done, that there had judgment therefor is asked. The action, been an order of the county court granting ha ving, by agreement of parties, been trans- the licenses taxes for which, it is stated, ferred to equity, was referred to the master were collected and appropriated by the clerk commissioner, who, after taking proof, made to his own use. The plaintiff does not in report of the amount of such fees received, this case allege in terms that the licenses in during the period mentioned, by Jones, as . question were granted by authority of the clerk, which he had not accounted for to the city of Newport, or any other town or city commonwealth. Thereupon the court, con- in Campbell county; but it seems to us that, firming that report, rendered judgment in inasmuch as the statute conferred the right favor of plaintiff for the sum of $1,950, and imposed the duty upon the county court against the defendants, including Katherine clerk to collect for benefit of the state the preSchwerman, though it is to be enforced as scribed amount of tax on each coffee-house to her only to the extent of assets received or saloon license granted by municipal aufrom the estate of her deceased husband. thority, it may be fairly implied from lanThere was a further judgment for $800 guage of the petition that such licenses were against all the defendants except her, it ap- granted in each case mentioned. pearing that an order of the county court The next question is whether the statute was made June, 1885, releasing her husband of limitations can avail the sureties in the from future liability on the bond. As none bond, for it is obvious more than seven years of the other defendants have appealed, the had elapsed from collection of the license inquiry is whether the judgment for the first- tax when this action was commenced; and named sum, so far as it affects Katherine that question involves construction of the Schwerman, is erroneous.

statute not heretofore made by this court.

Section 2551, St. Ky., being same provision argument for reversal is that a cause of ac- on that subject contained in the General tion is not stated in the petition, which, as Statutes, is as follows: "A surety in any contended, ought to have contained an aver- obligation or contract * * * shall be disment that the saloon licenses in question charged from all liability thereon when sevwere granted by order of the Campbell coun- en years shall have elapsed without suit ty court.

The statute did during the period thereon after cause of action accrued.” But referred to, and does now, by section 4203, section 2519 provides that, "in actions for St. Ky., provide in general terms that all relief for fraud or mistake or damages, for licenses to sell by retail spirituous, vinous, either the cause of action shall not be deemor malt liquors shall be granted by the coun- ed to have accrued until the discovery of the ty court; and, in cases to which that provi- fraud or mistake; but no such action shall sion applies, the clerk thereof cannot, with- be brought ten years after the time of makout an order of court, legally either issue ing the contract or the perpetration of the license or collect tax therefor. It was ac- fraud.” The cause of action iu this case is cordingly held in Com. v. Wilson, 7 Ky. Law the fraudulent appropriation by Jones, the Rep. 666, cited by counsel, that an indict- clerk, to his own use, of saloon-license taxes ment against a county court clerk for misap- collected by him in his official capacity, and propriating money received by him as tax which the statute required him to pay into upon a license to a merchant to retail liquor the state treasury; and it is distinctly alwas defective in omitting the statement that leged in the petition that plaintiff did not the license was granted by the county court. discover the fraud until more than seven But exclusive authority to grant licenses to years had expired from date of the bond, sell by retail liquor in an incorporated city because misled and deceived by the false or town is generally vested in the municipal report made officially, and under oath, by government, and exercise of such license is Jones, of the number of licenses issued and

The first of the two grounds relied on in Se

amount of taxes collected by him during said Appeal from circuit court, Daviess county. period. It seems to us, when an officer, in “Not to be officially reported.” regular performance of a public duty which Action by Helen Ingleheart and others involves collection and payment of money against William McClurg to recover daminto the treasury, makes a false report in ages for causing the death of Columbus Inrelation thereto for the purpose and which gleheart. Plaintiffs had judgment, and dedoes have effect to deceive, an action by the fendant appeals. Reversed. commonwealth to recover the amount so

Sweent, Ellis & Sweeney, for appellant. misappropriated may be instituted and main

Little & Little and Reuben A. Miller, for aptained, under section 2519, at any time with

pellees. in 10 years from perpetration of the fraud. And as the sureties of Jones, like him, cove- GRACE, J. This is a suit by Helen Inglenanted for faithful discharge of his official | heart and her two infant children against duties, and payment in due time of money William McClurg, seeking to recover damcollected by him to the person entitled, and ages of him for killing of Columbus Ingleconsequently became equally bound by stipu-heart, who was her husband, and the father lations of the bond, the cause of action of her infant children, on the 21st of April, against them cannot, in language of the 1895, charged to have been done (in the lanstatute, “be deemed to have accrued until

guage of the statute) wantonly and maliciousthe discovery of the fraud"; and not until ly. On the trial a judgment was rendered then did the statute of limitations begin to in favor of plaintiffs for $7,000, and to rerun in their favor, though, of course, the ac- verse that judgment this appeal is prosetion could not have, in any event, been main- cuted. tained against them 10 years after execution The first objection urged by the appellant of the bond or perpetration of the fraud. is that the court erred in overruling his apJudgment affirmed.

plication for a continuance on the affidavit filed by appellant. This affidavit spoke in a

general way only of his inability to have his McCLURG v. INGLEHEART et al.

witnesses present at that term of court, but

it signally failed to set forth with any kind (Court of Appeals of Kentucky. Nov. 26, 1895.)

of clearness what he could prove, or believed

he could prove, by any one; nor did it give ACTION FOR DEATH BY WRONGFUL ACT-PARTIES

the name of a single witness whose testimo-CONTINUANCE-INSTRUCTIONS-RIGHT OF SELF-DEFENSE.

ny he deemed material for his defense; nor 1. An affidavit for continuance on the

had he taken out any process or used any ground of absence of witnesses, failing to allege diligence to obtain the attendance of any one their names, the testimony which they were ex- in his behalf. It was, on this point, so mapected to give, or that any process had been

terially defective as to make it unnecessary taken out or diligence used to secure their attendance, was properly overruled.

to notice it further on this ground. 2. An application for continuance on the Another ground set up by appellant as a ground of defendant's illness was addressed to reason why he could not try his cause at the sound discretion of the court, and its decision in denying the same on the conflicting affi

that term was that he was in poor health; davits of the parties was not an abuse thereof. that he was suffering with Bright's disease,

3. In an action for causing death, an in- --feeble and nervous; that his condition had struction giving in years the life expectancy of deceased, and directing the jury that in esti

been aggravated by his confinement since the mating actual damages they should consider

killing (April 21, 1895); that he had been the probable net earnings of deceased during unable to give bond, and so he could not that period, taking into consideration his habits

hunt up or introduce his witnesses. In supand capacity to earn, gave undue prominence to the fact of expectancy, separated from the

port of this affidavit the testimony of a other facts in evidence, -as that deceased's physician was taken, who had at one time health and habits were only fairly good, and since his confinement in jail-some weeks bethat lie had been unable to work continuously.

fore that time-attended appellant, and his 4. The right of self-defense, as a defense to an action for causing death, does not depend

evidence in a general way tended to support upon the belief of the jury as to whether de- the application of appellant. The plaintiffs fendant was in danger, but as to whether de- below then introduced another who had seen fendant at the time had reasonable grounds to believe, and did in good faith believe, that he

and examined the defendant but recently, was in danger, and then defendant might only | who, after describing his appearance and take life providing he had no apparent and safe symptoms with some detail, expressed the means of protecting his own life and person.

opinion that there was no trouble, and no 5. But if defendant, with intent to assault or kill deceased, first attacked deceased, and

danger in the appearance of defendant in never abandoned said attack until he shot de- court and proceeding to try his case. The ceased, the jury should not find for defendant

jailer was then introduced, who testified subon the ground of self-defense. 6. Unless one is justified on the ground of

stantially as this last physician did, and that self-defense, he is not excusable for killing defendant ate his food with relish, and in another, though he did it under such circum- sufficient quantity; that he slept soundly: stances as would make it manslaughter.

that, while some weeks before, defendant 7. In an action by a surviving wife to recover for cansing the death of her husband the chil

had complained of his kidneys, and that dren may be joined.

while there had been at one time some indi

cations in his urine of kidney trouble, yet tion of the trial court, and its action will not that same had passed away; and that, in so be disturbed on appeal unless the record affar as he could judge, defendant was quite firmatively shows that it abused its discreable to come into court, and to go through tion." In the case of Musgrove v. Perkins, with the trial. Other testimony was intro 9 Cal. 212, the court said the same in subduced by plaintiffs tending in some degree stance. And in People v. Mortimer, 46 Cal. to modify the statements of the physician 114, the court said: “It has been held here who had spoken in behalf of defendant. It that there is no abuse of discretion in refusappears from the record that the court then ing a motion for a continuance if the cirexpressed its wish that it had authority to cumstances cast suspicion on the application, send yet some other physician to examine and induce the belief that it was intended the condition of appellant, and to report to only for delay.” The same rule, and based court; and he made, on an adjournment, a on the same discretion, is in force in Iowa, suggestion to counsel for defendant to do the courts there taking the same distinction that thing, but to which, it is said, they as noticed in California; that is, that where made no response. The judge overruled the the application is based on the absence of motion. Appellant contends that his own af material witnesses, then, to obtain a trial, fidavit was sufficient, and that it was error the opposite party must admit the testimony, to permit same to be controverted by any but that in all other cases the appeal for contestimony whatever. On this question we tinuance is made to the sound judicial disfind the authorities to be somewhat in con cretion of the court. See State v. Wells flict. The rule of practice seems to be that, (Iowa) 17 N. W. 90, and other cases there where the affidavit is in reference to absent cited. The same rule obtains in Texas. See witnesses, setting forth fully and with cer Hyde v. State, 16 Tex. 415. A moment's retainty what he expects to prove by them, flection must convince any one that, where giving their names, and showing diligence, the matter is not specifically regulated by that then this cannot be controverted by statute, it must necessarily be left with the counter affidavits; and this rule is stated trial court, in a sound judicial discretion. because, it is said, the Code has specifically It would be a strange confusion of terms to pointed out the particular manner by which say that the court designated by the conone desiring a trial can obtain same against stitution and laws of the state to hear and such affidavit, and that is by admitting that determine causes yet had not the judicial the witnesses, if present, would testify as discretion and authority to first determine stated by the applicant; and that, the Code whether they properly stood for trial. Where having specifically done this, it means that else, possibly, could this authority be lodged the matter as to the ground of continuance than in the trial judge? Our constitution is no longer in the discretion of the court. provides “that all courts shall be open, and This right of continuance by reason of the every person for an injury done him in his absence of important testimony, however, is lands, goods, person or reputation, shall have the only case that is so specifically pointed remedy, by due course of law, and right and out, and all other matters must necessarily justice administered without sole denial or be left to the sound judicial discretion of the delay." Section 14. Of what benefit would court. Even as to this ground the rule has this declaration be to keep the courts open ,

for remedy of injuries if the defendant and case of Halsey v. Com., found in 1 Ky. Law his counsel only should say, "It does not suit Rep. 402: “That when the court is satisfied our purpose, convenience, or pleasure to try that the grounds for a continuance are mere the cause at this term of court;" and if they ly for delay, such continuance will be re should, by law, be further permitted to say, fused, even though such ground be the ab “What I file you shall accept as true, and sence of material witnesses.” And in the not controvert same; that we are to detercase of Wells v. Com. (Ky.) 13 S. W. 915, mine the time and place of trial and not the the court said: "That while the continuance court”? All this sounds strangely in a land should be granted or refused on the affidavit governed by law, and in a court supposed of the person moving same, and that counter to be established to administer the same. affidavits were not admissible where the ap We will not pursue this subject further than plication rested on the absence of material to say that appellants motion for a contin, witnesses, yet that this rule should not be uance was to be determined by the sound so restricted as to prevent the trial judge, judicial discretion of the court, and that there where he has reasonable grounds from all the has been no abuse of same in this case, under circumstances to believe that an imposition the facts as presented to the court. Neither is being attempted, or a ruse being prac

would it have been proper for the pro tem, ticed, from ascertaining whether this belief judge, who was called to the bench on the is well founded." This right of the court sickness of the regular judge of the court, to inquire has been affirmed in California to review the action of the judge on this in Kneebone v. Kneebone, 83 Cal. 647, 23 matter. Pac. 1031. The court said: “It is settled Complaint is made by appellant of the law in this state that applications for a con court in giving instructions to the jury. The tinuance are addressed to the sound discre second one reads as follows: "At the time of

V.33s.w.no.1-6

his death the life expectancy of Columbus dence whether the accused, at the time he Ingleheart was 28.6 years, and in estimating shot and killed Ingleheart, then had reasonathe actual damages the plaintiffs have sus ble grounds to believe, and that he did in tained the jury will consider the probable net good faith believe, that his life was then in earnings of the deceased during that period, danger, or that his person was then in dantaking into consideration his capacity to earn ger, from violence at the hands of Ingleheart; and his business habits." Tbis appears to that then he had this right of self-defense, have been given upon the authority and ju etc. To this instruction it was appropriate dicial knowledge of the court alone, and with to add the usual limitation that accused out any testimony having been introduced might then only take the life of the deceased directly on the subject. The evidence upon provided he had no other apparent and safe which the court assumed this knowledge, as means of so protecting his own life and perwe suppose, was that Columbus Ingleheart son than by so taking the life of the said was 34 years of age at the time of his death. Ingleheart. This limitation is intended to emNo testimony was introduced as to the ex body, not so much the idea that on the facts pectancy of his life. This estimate by the of this record as we find them it was first the court of the expectancy of the life of Ingle duty of appellant to retreat, as to impress heart may be presumed to have been taken upon the jury that it is only where there is from the life tables in use before the courts a necessity, real or apparent, to accused, in in Kentucky, and to be correctly stated; and, his own defense, to go to the extreme length so far as this fact alone goes, it may make of taking the life of his adversary, that he but little, if any, difference whether the same is excusable under the law for so doing. A was given in evidence by an expert from the further limitation on this right is well extables, or whether the court told the jury pressed in the closing sentence of instruction so as of its own knowledge, as the result No. 4 as asked by plaintiffs' counsel in the would doubtless be the same,--28.62 years court below. It is in these words: "But if as the expectancy of the life of Ingleheart at the jury believe that defendant, with intent the time of his death. The objection, how to assault, beat, or kill deceased, sought and ever, to the instruction as it stands, is that first attacked deceased, and never abandonit isolates this fact-this expectancy-from all, ed said attack until he shot deceased, the or nearly all, other facts, and circumstances jury should not find for defendant on the with which, under the evidence, it properly ground of self-defense.” The instruction givstands connected,-as that the health of the en by the court stated these principles incordeceased was only fairly good; that for a rectly. Instruction No. 3 as asked by counyear past he had not been able to work con sel for plaintiffs was correct, and should tinuously; that his habits were only fairly have been given. It embraces the idea that, good; and that he was reasonably indus unless defendant is excusable upon the trious,--and gives undue prominence to the ground of self-defense, then he is not excussame; and this has often been condemned able for the killing, though he did it under by this court. We find that this instruction such circumstances as would make it manwas not prepared or asked by appellees' slaughter only, and not murder. We think counsel, but that it was given of the court's the word "wantonly” will embrace every own motion. There was an instruction ask wrongful and intentional killing. These ined on this point by counsel for appellees in dications will enable the court readily to em. the following language, embodied in Paper brace the law of the case correctly in a new A, No. 1: "In estimating the actual damages trial. sustained by plaintiffs (if any are found) There was no error by the court below they will consider the capacity of deceased in permitting all the plaintiffs to join in this to earn money, his prospects of life, consid one suit. It was eminently proper that they ering his age, health, and occupation, and should do so. Nor was there any error in the consequent loss sustained by plaintiffs holding that the burden of proof was on in his death; and if the jury find vindictive plaintiffs, nor in awarding them the closing damages (as they may) same will be added to argument. For the errors indicated, the judgthe actual damages (if any are found), and ment is reversed, and the cause remanded for may be in such amount as the jury may de further proceedings consistent with this opincree proper in their sound discretion; not in ion. all to exceed the amount claimed, $15,000.” We see no objection to this instruction, and

UNITED STATES MAIL LINE CO. v. it should have been given by the court in

MCCRACKEN. stead of No. 2, that was given. Again, in

(Court of Appeals of Kentucky. Nov. 27, struction No. 3 as given by the court is ob

1895.) jectionable, as it in effect makes the appel

State COURTS — JURISDICTION COLLISIONS. ON lant's right of self-defense depend on the be

NAVIGABLE WATERS--APPEAL lief of the jury as to whether he was in

-HARMLESS ERROR. danger at the time he killed Ingleheart, while 1. A state court has jurisdiction of an acthe true rule is as expressed in instruction

tion by the owner of a boat for damages receiv

ed in a collision with another boat on a navigaNo. 4, asked by appellees, but not given by

ble river, a personal remedy only being sought. the court, for the jury to find from the evi 2. In an action by the owner of a boat for

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