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Appeal from circuit court, Graves county. “To be officially reported."

William Turner was acquitted on the charge of false swearing, and the commonwealth appeals to review an instruction. Declared erroneous.

W. J. Hendrick, for appellant.

receive. On August 18, 1893, the council adopted an ordinance fixing the salary at $900 per year. This ordinance was published as required by law. On the 29th of August, 1893, the council, by ordinance, reduced the salary to $600 per year, but this ordinance was not published until February 24, 1894. Therefore, say counsel for appellee, the only valid ordinance fixing the salary was the one of August 18th. The ordinance published in February comes too late, they contend, to affect the appellee, who was elected and appointed when his salary was fixed at $900, and under the constitution no change in his salary could be made during his term of office. To all this we would be prepared to agree except for the fact that at the time the ordinance of August 29th was adopted, and until January 1, 1894, the appellee was the mayor of the city, and it was his duty as such "to see that the laws and ordinances of the city were duly observed and faithfully executed.” It is true that it was the special duty of the clerk, immediately after any adjournment of the council, to publish all the ordinances passed at the meeting; but it was the duty of the mayor, who was a member of the council, also to see that he did so. Appellee was the executive officer of the city, and charged with the duty under the old charter and the new of seeing that the laws of the city were duly observed and faithfully executed. It is shown that he was present when the ordinance of August 29th was adopted, and threatened to veto it, but desisted, being a candidate for the judgeship at the time. Having this positive knowledge of the adoption of the ordinance, it was his duty, as well as the clerk's, to see that the publication was made as required by law. He cannot rely on his neglect to avoid the force of an ordinance confessedly regular in all respects except as to

to its publication. While it is manifest that the appellee intended no wrong in his failure to have the clerk observe this law requiring publication, the rule remains the same,-one cannot take advantage of his own wrong or neglect. The judgment sustaining the appellee's demurrer to the answer and amended answer of the city, and granting the relief asked in the petition, is reversed, with directions for further proceedings consistent herewith.

EASTIN, J. This was a prosecution against the appellee, William Turner, under an indictment found against him by the grand jury of Graves county, charging him with the offense of false swearing, alleged to have been committed in the case of Commonwealth v. Harned. Appellee having been acquitted on the trial in the court below, this appeal is prosecuted by the commonwealth to settle the question as to the correctness of the following instruction, given by the court and excepted to by counsel for the commonwealth, to wit: “The court will further say to the jury that, if they believe from the evidence that, at the time defendant testified in the case of Commonwealth of Kentucky v. George Harned, he objected to testifying whether he cut George Harned, or whether he struck George Harned, or whether he had a knife at the time of the quarrel between him and George Harned, at Ebon Gilbert's, and the court compelled him to testify about these matters against his will, it was incriminating matter, about which he could not be legally required to testify, and they will find him not guilty.” The charge against appellee, in the indictment, the form and sufficiency of which are not put in question, was that he had willfully and knowingly sworn falsely when interrogated on each of the three points referred to in this instruction, viz. as to the cutting, the striking, and the having a knife, in the difficulty which had occurred between him and Harned. It will, therefore, be seen that, if the charges had been fully made out by the commonwealth in each of the three particulars specified, yet, under the law as given by the court in this instruction, the jury were bound to acquit appellee, provided, only, that they believed that he had objected to testifying to these matters. Was the courr below authorized to give this instruction? It will be seen that, in doing so, the court has assumed the right to determine the question whether or not the testimony given by appellee against his will in the Harned Case was criminating testimony, and whether or not the court in that case acted legally in requiring him to testify about these matters. Not only has it assumed to pass upon these questions, both of which had been passed upon in the other case, but it has determined them both in direct opposition to the conclusion reached by the court in the Harned Case. If that court had considered the testimony as criminating, it may be assumed that it would have respected the privilege of the witness, and would have exempted him from testifying. That this is a question addressed to the

COMMONWEALTH v. TURNER. (Court of Appeals of Kentucky. Nov. 27,

1895.) FALSE SWEARING-ISCRIMINATING TESTIMONY.

Under St. § 1174, declaring it an offense for one, on any subject in which he can be legally sworn, or on which he is required to be sworn, when sworn by a person authorized, to willfully and knowingly testify falsely, one required, against objection, to testify to incriminating matter, may be convicted of false swearing in regard thereto.

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sound judgment of the court in which the cumstances might not be used to convict him testimony is called for, we think there can in a prosecution for the offense of which he be no doubt, and it would certainly be a had thus criminated himself, yet, where he dangerous practice to allow another court testifies, whether willingly or unwillingly, of no higher authority to decide that the he must tell the truth, or make himself first court has compelled the witness to tes amenable to the law against false swearing. tify as to matters "about which he could not In the statute of this state against gaming be legally required to testify."

it is provided that a witness shall not be But this instruction further assumes that, exempted from testifying on the ground that if a witness be required to testify against his testimony may criminate himself, though, his will to matters which may criminate by the terms of the same statute, he cannot him, then, no matter how false his testimony be prosecuted “for any gaming so necessamay be, he cannot be prosecuted under the rily disclosed in his testimony." But it is to statute for false swearing. Can this view

be observed that it is further expressly proof the law be sustained? We know of no vided, by that statute, that "no such testidirect authority on this question, and have mony given by the witness shall be used been cited to no case on the subject; but it against him in any prosecution except for seems to us that the statute under which false swearing or perjury.” St. Ky. § 1973. this prosecution was instituted requires that Here, then, we find the manifest policy of a witness who may be compelled against his our laws to punish, under all circumstances, will to testify, under penalty of placing him this heinous offense of false swearing. By self in contempt of court, shall, when he does the express terms of the statute, the witness testify, still depose the truth. That statute in these cases who may criminate himself is in these words, to wit: "If any person, in is not only exempted from prosecution for any matter which is or may be judicially the particular offense disclosed by his testipending, or which is being investigated by a mony, but this testimony can be used against grand jury, or on any subject in which he him for no other offense except that of false can legally be sworn, or on which he is re swearing or perjury. The policy is a sound quired to be sworn, when sworn by a person one, and, in the interest of good morals, and authorized by law to administer an oath, for the protection of society, should be upshall willfully and knowingly swear, depose held and fostered by the courts. For the or give in evidence that which is false, he reasons assigned, we think the lower court shall be confined in the penitentiary not less erred in giving the instruction complained than one nor more than five years." St. Ky.

of, which is ordered to be certified to the § 1174. The language which we have itali court below as the law of this case. cized seems to cover the case under consideration. The penalty attaches to false swearing on any subject “on which he is re

FREMD v. IRELAND et al. quired to be sworn," and there is no denial (Court of Appeals of Kentucky. Nov. 27, that the witness was, in this case, required

1895.) by the court, in the exercise of its judgment,

ATTACHMENT- ISSUANCE_VALIDITY, to be sworn. Nor does this mean simply on 1. Civ. Code, $ 39, provides that an action a subject in which he is required by law, or

is commenced by filing a petition, and causing legally required, to be sworn. The sentence

a summons to be issued or a warning order to

be made. Section 194 provides that plaintiff immediately preceding this provides express may at or after the commencement of the acly for those cases "in which he can legally tion have an attachment. Held, that where a be sworn," and the fact that it is immediate petition was filed against a nonresident, and a ly followed by this other sentence, in the dis

warning order obtained, an attachment after

wards issued and levied on defendant's properjunctive, "or on which he is required to be ty was valid. sworn,” shows clearly, as we think, a pur

2. The fact that plaintiff, at the time he

obtained the attachinent, filed an amended repose on part of the law-makers to provide

tition, and that such petition asked that defendfor two different and distinct states of case. ant be again warned, and that no summons or One of these relates to subjects only “in warning order was then issued against defendwhich he can legally be sworn," while the

ant, did not affect the attachment, where the other relates to those on which he may be

amended petition was not necessary, and stated

no new cause of action. "required to be sworn.” To give any effect 3. The fact that an order of sale of attachwhatever to this latter clause, it must be

ed land is made before an affidavit is filed showconstrued to cover a class of cases not em

ing that defendant has no personal property in

the state known to affiant, or not enough to satbraced by the former clause, and this, in our isfy plaintiff's demand, does not render the opinion, is the true construction. In this judgment in the attachment suit void, or affect

the lien. case, appellee was "required to be sworn" by the court in which he was testifying as a Appeal from circuit court, Henry county. witness, and, having recognized the authori "Not to be officially reported." ty of the court to require it, and having Action in attachment by John Fremd sworn on this subject, he was liable to the against W. M. Ireland, in which there was a penalty prescribed by the statute if he swore judgment for plaintiff. From a subsequent falsely. While, therefore, any criminative judgment making W. O. Moody a defendant, testimony given by a witness under such cir allowing him to consolidate with such ac

tion a subsequent attachment suit by him es, which was examined and approved, and against the same defendant, and contest the at the same term of court, and on the 17th prior attachment, and quashing plaintiff's of October, a judgment was rendered and attachment, and setting aside the levy and entered sustaining plaintiff's attachment, order of sale, plaintiff appeals. Reversed. and adjudging a lien on the attached prop

erty to secure plaintiff's debt, which are set W. P. Thorne and D. A. Sachs, for appel

out in the judgment, and that so much of lant. John D. Carroll, for appellees.

the same as may be necessary be applied

to the payment of plaintiff's debt, interest GUFFY, J. On the 1st day of August, and cost, and ordering C. T. Scott, master 1892, the appellant, John Fremd, brought commissioner, to sell said property, describsuit in the Henry circuit court against W. ing the same, and directing him to report to M. Ireland, seeking to recover judgment for next term of the court. At the January the amount of two notes, one of which was term, 1893, of said court, W. 0. Moody came for more than $200, and at the same time and stated in substance, as shown by order filed affidavit showing that Ireland was a of court, that on the 16th day of September, nonresident of this state, and obtained a 1892, he filed suit in this court against dewarning order, warning Ireland to appear fendant Ireland, and on said day obtained on the first day of the next October term, an attachment, and the same was on the to answer the petition; and W. B. Moody 19th of September levied upon the same was appointed to defend for him, and Moody property that appellant's attachment had accepted the appointment, as appears from been levied upon, and asked that his suit be the certificate of the clerk. On the 15th of consolidated with appellant's, in order that September, 1892, the appellant filed an he might contest appellant's attachment, and amended petition, in which he averred, in to quash the same, and discharge the levy, substance, that W. B. and M. O. Moody had, and to set aside the order of sale of the propas executors of Elizabeth Ireland, become erty: (1) Because the attachment was isindebted to defendant Ireland, and made sued before the action was commenced, and them defendants to his suit, and made this before any warning order was made or sumamendment part of his original petition, and mons issued; (2) because the attachment made the original petition part of the amend was obtained on an amended petition filed ment, and asked for summons against the herein, and no summons or warning order Moodys; also says: "Plaintiff files his affi issued or made on the amended petition; (3) davit and bond herein, and asks that an at because the sale herein was ordered and tachment issue against the property of the made before any affidavit was filed showing defendant W. M. Ireland, that the same the defendant had no personal property in be levied upon the property of the said de this state known to affiant, or not enough to fendant Ireland, and that the same be sub- satisfy plaintiff's demand. To all of the jected to the payment of his said debt," etc. foregoing, plaintiff objected, and the court On the same day, the appellant filed the nec took time; and on the 12th day of January, essary affidavit to obtain an attachment, and 1893, the court rendered the following judgexecuted bond as required by law, and on ment, in substance: That said Moody be the same day summons was issued against made a party defendant, and allowed to consaid Ireland and the Moodys, which was test plaintiff's attachment, and consolidate served on the Moodys, but not on Ireland, Moody's suit with plaintiff, and quashed and on same day an order of attachment is plaintiff's attachment, and the levy made sued to the sheriff of Henry county against thereunder is set aside, and the order of sale the property of said Ireland. The order of made herein is set aside, and held for attachment is indorsed: "Came to hand at naught,--to all of which the plaintiff except8 o'clock on the 16th day of September, ed, and prayed an appeal, which was grant1892.” It also shows that it was levied up ed, and afterwards appellant procured an apon certain real estate as the property of peal. the defendant Ireland on the same day, to The court below did not assign any reason wit, 16th September, 1892. At the October for the judgment appealed from, but we interm, 1892, of said court, W. B. Moody filed fer from the grounds relied on by appellee, his report as corresponding attorney for the and from the briefs on file, that the learned nonresident defendant, and was allowed $5 judge was of the opinion that the plaintiff therefor, to be taxed as cost. · The report had not commenced any action before the atsubstantially stated that he had written to tachment was issued. An action is comdefendant notifying him of the pendency menced by filing in the proper court a petiand character of the suit, and what the re tion stating the cause of action, and by caussult of his failure to answer would be. De ing a summons to be issued or a warning fendant wrote him in reply to said letter, order to be made therein. Civ. Code, & 39. but did not disclose any defense, and the The plaintiff filed his petition, and procured undersigned is not able to make any defense the warning order, August 1, 1892; and, alto the claim against defendant; and on though it is true that he could not obtain a same day appellant filed bond as required personal judgment upon constructive servby law before taking judgment in such cas ice, he, nevertheless, had an action pending

in court. Section 194 of the Code provides , ing a building. An injunction is also asked that the plaintiff may, at or after the com to prevent the commission of other tresmencement of an action, have an attach passes upon the same property. The appelment against the property of the defendant, lants, who are the trustees of the town of etc., which appellant proceeded to procure Bardwell, claim that the lot upon which the September 15, 1892, by filing affidavit and entry was made had been dedicated, or so executing bond as required by law. It is much as was necessary, by the appellee for true that he also filed an amended petition one of the streets of that town, and, as such, at the same time, but which need not to have had been used by the public and controlled been done to obtain the attachment. No new by the town authorities. The entire question cause of action was stated; hence no new was submitted to the chancellor, and a judgwarning order or summons was required to ment perpetuating the injunction entered. be issued, although appellant in his petition This lot was a vacant common, and traveled asked that defendant be again warned, and over by the public for a number of years, but also caused a summons to be issued against there is a want of evidence showing that it defendant and the Moodys. The latter fact

The latter fact had ever been dedicated for public use, or seems to have escaped the notice of appel- tbat such was the purpose of the appellee. lees. Appellant's attachment was issued The trustees of the town had, on their record and levied before that of the Moodys, and books, established certain streets, one of therefore was superior thereto, and the court which, if extended, would pass through the should have so adjudged. The failure of

The failure of lot owned by the appellee; but there is no plaintiff to file the affidavit before judgment | testimony showing that appellee ever parted for sale of the real estate did not render the with his title, or that he had done any act judgment void, nor in any way operate to that would estop him from asserting his ownannul the lien acquired by the levy of the ership. The use of this common was merely attachment. The court had no power at the permissive, and not an adverse claim, and January term, 1893, to set aside the judg- the fact the board of trustees established the ment and order of the October term, except street by an order on the books of the town in the manner provided by law; and the at- did not divest appellee of title, and, in fact, tempt to do so was erroneous, and could not this record shows the appellee was constantlegally affect or destroy appellant's lien. For ly asserting this right of property in himself, the errors indicated, the judgment appealed and the acts relied on as evidence of a dedifrom is reversed, and cause remanded, with cation are all contradicted by the appellee. directions to set the same aside, and to ad- The court below having passed on the facts,

appellant's lien superior to the and his judgment being proper, it is now afMoodys', and for further proceedings con firmed. sistent with this opinion.

HALE V. COMMONWEALTH.
HARELSON V. ELSEY.

(Court of Appeals of Kentucky. Dec. 3, 1895.) (Court of Appeals of Kentucky.

Nov. 27,

BURGLARY-INDICTMENT-DESCRIPTION OF PREMI1895.)

SES-INSTRUCTION--REFERENCE TO FACT

IN EVIDENCE. TRESPASS-SUFFICIENCY OF EVIDENCE.

1. An indictment under St. $ 1164, providIn trespass against trustees of a town for ing that, if any person shall break into any entering on and removing fences and lumber storehouse, whether such place be or not a defrom plaintiff's lot, it appeared that defendants pository for goods, with intent to steal, etc., had, on their record books, established certain need not allege that there were, at the time of streets, one of which, if extended, would pass the breaking, any goods in the storehouse. over such lot, which was a vacant common, 2. An indictment charging that defendant and traveled over by the public for many years; broke the storehouse of a person named, in a but there was no evidence that it had ever been certain county, sufficiently described the storededicated to public use, that such was plaintiff's house. purpose, or that he ever parted with his title or 3. On a trial for breaking a storehouse with did any act that would estoy him from assert intent to steal, it was not prejudicial for the ing his ownership. Held, that a judgment for court, in explaining the degree of force necesplaintiff was proper.

sary to constitute a breaking, to state that it

could be committed by breaking a pane of glass, Appeal from circuit court, Carlisle county.

though it appeared that a pane of glass was “Not to be officially reported.”

broken in the storehouse (where defendant adAction of trespass by A. F. Elsey against mitted he was) by another than the owner, by W. C. Harelson and others. From a judg means of which an entrance could be effected. ment for plaintiff, defendant appeals. Af Appeal from circuit court, Livingston counfirmed. John W. Ray, for appellant. Nichols &

"Not to be officially reported." Woden, for 'appellee.

Bud Hale was convicted of breaking a

storehouse with intent to steal, and appeals. PRYOR, C. J. This is an action of trespass

Affirmed. for entering upon the premises of the appel J. C. Hodge, for appellant. John K. Henlee and removing his fencing and lumber drick and Wm. J. Hendrick, for the Commonplaced upon his lot for the purpose of erect wealth.

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LEWIS, J. Appellant was indicted and

Appellant was indicted and window, caused by breaking a pane of glass, convicted for the offense of feloniously break not done, as he testified, by owner of the ing and entering a storehouse, with intent to storehouse, through which the hand of a steal therefrom, committed as follows: "The person might have been thrust far enough. said Bud Hale, in said county of Livingston, to reach and turn key of the back door, and in May, 1894, did feloniously break and en in that way enter the storehouse; and the ter the storehouse of John B. Ledberry, a de lower court, undertaking, in one of the inpository for goods, wares, and merchandise, structions given, to explain and illustrate with intent to steal therefrom property of the character and degree of force necessary value.” It is argued by counsel the indict to constitute a "breaking," as mentioned in ment is defective, because, first, it does not the indictment and also a preceding instruccontain a statement there were at the time tion, indicated, as one of the various modes the storehouse was broken any goods, wares, enumerated by which the act could be comor merchandise in it, and, second, there is mitted, "breaking a pane of glass.” This not sufficient description of the storehouse. court has frequently held it improper and

Section 1164, St. Ky., under which the in prejudicial for a court, in trying either a dictment was found, provides: "If any per civil or criminal case, to single and give son shall feloniously in the night or day prominence to any particular fact proved break any warehouse, storehouse, office, shop

that bears upon the issue, which it is the or room in a steam-wharf or other boat, exclusive province of the jury to try and whether such place be or be not a depository determine. But it was the duty of the court, for goods, wares and merchandise, and in this instance, to instruct the jury as to whether the goods, wares and merchandise legal meaning of the term “breaking"; and be or be not exposed for sale in such place, reference to the particular mode by which with intent to steal, or shall feloniously take appellant might have broken and entered the therefrom or destroy any goods, wares, mer storehouse, where he admits he was, was chandise or other thing of value whether not improper or prejudicial, because it did the owner or other person be or be not in not amount to expression of the court's opinsuch house, office, room or shop, he shall be ion, or even suggestion, that he did in fact confined in the penitentiary not less than one break the pane of glass. nor more than five years." In order to make In our opinion there was no error of law out, in meaning of that section, the crime of on the trial, wherefore the judgment is afwhich appellant was convicted, it must be firmed. charged in the indictment, and of course proved, that the accused did feloniously

CHILDRESS et ux V. CHAPPELL et al. break some such place as is there described,

(Court of Appeals of Kentucky. Dec. 4, 1895.) with intent to steal therefrom property of

Appeal from circuit court, Trigg county. value. But it is not necessary to charge "Not to be officially reported." he did actually steal or take away anything. Action by J. J. Chappell against I. N. ChilNor need it be charged, or even proved, ex

dress and wife to foreclose a mortgage. From

the judgment confirming the sale, defendants cept as a fact bearing on the question of

appeal, Cox, the purchaser, being made an apguilt of the accused, that the place broken pellee. Reversed. contained at the time any goods, wares, mer W. C. Bullitt and Robert Crenshaw, for apchandise, or other thing of value; for a per

pellants. R. A. Barnett and J. E. Kelley, for son may, under mistaken belief that a place

appellees. ordinarily used as a depository for goods, HAZELRIGG, J. Four tracts of land were wares, or merchandise contains property the sold in a body to satisfy the mortgage of the subject of larceny, feloniously, and with in appellee Chappell, bringing just enough to pay tent to steal, break it, and be consequently as

the debt, interest, and costs. It appears, how

ever, that one of the tracts, with the consent of guilty of the offense in question as if the the mortgagee, had been sold to one Cox for $450, place had actually been full of goods, wares, and the note for the purchase price was held by and merchandise. The indictment is there

Chappell as collateral security for his mort

gage debt. This fact was not disclosed by the fore not defective for the first reason sug petition or judgment, but it is probable the bidgested by counsel.

ders for the land knew it, and hence the commisNor was it necessary, under circumstances sioner, as his report shows, got no bid for the

tract sold to Cox. If no one would bid for this of this case, to give a more particular de

tract when the land was offered in tracts sepscription of the house charged to have been arately, it is probable that, when the land was broken than to state, as was done, that it offered as a whole, no value was placed on this was the storehouse of John B. Ledberry, in

tract, though it was, in fact, worth at least

$150. On the trial of the exceptions to the sale, Livingston county; for thereby was appel à bidder offered to take the three tracts, and lant, being a person of common understand pay the debt, interest, and costs, and some $125 ing, enabled to know what place was in

in addition. This will leave the purchaser,

Cox, unmolested, satisfy the appellee's debt, and tended, and was the court enabled to pro

work no injury to any one. The purchaser at nounce judgment on conviction, according to the decretal sale is made an appellee, but files right of the case. The instructions, we no brief, presumably not insisting on his purthink, embody a full and correct exposition of

chase. The appellants, however, must pay the

costs of this appeal. Judgment reversed, with law applicable to this case. It, however, ap directions to set the decretal sale aside, and for peared in evidence there was a hole in the proceedings consistent with this opinion.

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