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action was taken by the board, and for that, and, we may assume, shown to be false in reason, if no other, the judgment should have fact. Indeed, we may assume that the apbeen affirmed. The judgment of the circuit pellant has shown himself to be entirely free court is therefore reversed, with directions from any suspicious connection with the to dismiss the appeal taken from the license crime for which he was arrested and held board.

over. But it is also true that these statements of the witness were in fact made to

the appellee while it was investigating the MEYER v. LOUISVILLE, ST. L. & T. RY.

thefts committed on its cars under the manCO.

agement of the appellant, and before his ar(Court of Appeals of Kentucky. Dec. 4, 1895.)

rest was decided on. It is undisputed that MALICIOUS PROSECUTION-PROBABLE CAUSE-REP

thefts were repeatedly committed, and sealRESENTATION OF ACCOMPLICE.

ed cars broken open on his train; that the Representations made to prosecutor by witness Allen, a brakeman, and theretofore of a brakeman of the train of which accused was good standing, confessed to the company (1) conductor, and which had been repeatedly robbed, that on his being detected by accused

that he and one Roberts broke open the car while robbing a car he divided the property

on one occasion, and (2) that appellant saw stolen with accused, shows, as a matter of law, them while engaged in getting tobacco thereprobable cause for the prosecution, irrespective from, and (3) that they took the tobacco to of the truth of such representations.

the caboose, where appellant was, and dividAppeal from circuit court, Jefferson county. ed it among the three, burning the box which "To be officially reported."

contained it in the stove. Undoubtedly, on Action by Arthur Meyer against the Louis- this state of case, the guilt of the appellant ville, St. Louis & Texas Railway Company. was clearly indicated. Any judicious and There was a judgment for defendant, and

prudent person would have been impelled to plaintiff appeals. Affirmed.

that belief. Legal advice was thereupon Simrall, Bodley & Doolan, for appellant. taken, and the arrests followed. There is no O'Neal, Phelps & Pryor and Helm & Bruce, pretense of express malice, and to our mind for appellee.

the existence of probable cause is manifest,

and the instruction to that effect was propHAZELRIGG, J. The

The appellant was a er. Mr. Newell, in his work on Malicious conductor on a freight train of the appellee, Prosecution (page 14), says: “What facts and was arrested, with two others, composing and circumstances amount to probable cause his crew, at the instance of the company, for is a pure question of law. Whether they feloniously breaking and entering into a rail- exist or not in any particular case is a pure road car with intent to take, steal, and carry question of fact. The former is exclusively away certain property. After being confined for the court; the latter for the jury, when in jail in Louisville about a week, the charge the facts are in controversy, the court inwas dismissed by the court for want of juris- structing them as to the law.” The same audiction, it appearing that the alleged of- thor (page 267) further says: "In actions for fense was not committed within Jefferson malicious prosecution the real controversy is · county. The accused persons were imme- generally upon the question of probable diately rearrested, and taken to Cloverport, cause, the want of which is a vital and indiswhere a trial before an examining court re- pensable element in the plaintiff's case, and sulted in an order holding the parties over. as to which the burden of proof is upon him. The chief witness for the commonwealth was Whether there was want of such cause is a one of the crew, who had confessed to the question of law upon the fact proved. It is crime before the arrests, and who, in a meas- to be judged of, not upon the actual state of ure, implicated the appellant and another. the case, but upon the honest and reasonable This witness failed to appear before the belief of the party that instituted the progrand jury for two succeeding terms, and ceeding complained of." The author (page the prosecution was abandoned. Thereupon 269), speaking of the trial of this question by the appellant brought this action for ma- a jury, says: “It seems difficult for them to licious prosecution. A trial resulted in a ver- appreciate, if the plaintiff was really innocent dict for $5,000, which, however, was set of the charge for which he was prosecuted, aside by the court, upon the ground that the that he still ought not to recover. They do established and uncontroverted facts showed not readily comprehend why an innocent man that there was probable cause for the arrest. may be prosecuted for a supposed crime or Upon a second trial on the same evidence the offense, and yet have no recourse against the jury were accordingly instructed to find for prosecutor who caused his arrest and impristhe defendant. The complaint of the appel- onment; and yet the preservation of the lant is that the facts relied on by the appel- peace and the good order of society requires lee as establishing probable cause were all that every innocent man may be compelled put in issue by the proof, and stood contro- to submit to great inconveniences and hardverted. And it is certainly true that the ships, rather than that citizens should be statements of the witness Allen, upon which deterred from instituting prosecutions when the company in the main acted in getting out there is reasonable or probable grounds to bethe warrants of arrest, were contradicted, | lieve in the existence of guilt." This text is

pay to him.

supported by numerous cases. In Faris v. when he was drinking, he was kind to her; that Starke, 3 B. Mon. 4, a prosecution was insti

one P. and others spent about half an hour with accomplice,

her and defendant, when they were apparently tuted on the confession of an

friendly and sober; that, in about five minwith but slight corroborating circumstances, utes after they left, P. saw her and defendant, and the court held that, whether probable standing up, in a scuffle; that they scuffled a

few minutes, when she fell; that defendant cause was shown was a matter of law, and

ran away. Deceased's neck was broken. Held, determined that such cause did exist in that

that the court should have charged on the law case. The court said further that "the law, of involuntary manslaughter. therefore, protects the prosecutor if he have 2. In such case the court should have char

ged that if defendant and deceased were in a reasonable or probable cause for the prose friendly scufile, and by accident her neck was cution; that is, if he have such ground as broken, defendant was not guilty. would induce a man of ordinary prudence 3. Where defendant is charged with killand discretion to believe in the guilt, and to

ing a woman, it is error to admit evidence that,

long before the killing, he offered to allow witexpect the conviction of the person suspect ness to have carnal knowledge of deceased, for ed, and if he acts in good faith on such belief and expectation.” To the same effect is

Appeal from circuit court, Hart county. the case of Rives v. Wood (Ky.) 15 S. W. 131. "Not to be officially reported.” The authority relied on by counsel for the

Clarence Bevill was convicted of murder, appellant is not in conflict with that cited by

and appeals. Reversed. On the contrary, the citation from 1

Hermon Morris and Bales & Duff, for apHill. Torts, p. 438, is directly in line with

pellant. W. H. Holt and William J. HenNewell and other authority cited. That au

drick, for the Commonwealth. thor says: “The question of probable cause in an action for malicious prosecution, more GUFFY, J. At the September term, 1892, especially when the testimony is conflicting,

of the Barren circuit court, the grand jury is a mixed question of law and fact. When

returned an indictment against the appellant, the facts are uncontroverted, it is the duty

Clarence Bevill, charging him with the murof the judge to apply the law and determine

der of Nellie McGuire. A change of venue the issue. If there are contested facts, he

was taken to Hart county, and upon final should charge the jury, hypothetically, upon trial the appellant was found guilty of murthe state of facts claimed by each party."

der, and sentenced to the penitentiary for Upon this authority, therefore, the jury must

life; and, his motion for a new trial having have been instructed that if, from the testi

been overruled, he prosecutes this appeal. mony, they believed that certain thefts had

Counsel for appellant insist that the court been traced to the crew of which the plain

erred in refusing to give certain instructions, tiff was a member, and of which he was the

and erred in permitting Bruce Pursley to foreman, and conductor in charge of the train, testify, in substance, that the appellant, long and that information of a character to induce

before the killing, had offered to allow wita reasonably discreet person to believe it ness to have carnal knowledge of deceased, had been given to the defendant, to the ef for pay to him (appellant); also, that the fect that these thefts had been committed in

court failed to properly instruct the jury. the presence of the plaintiff, and the car

The evidence in the case shows that a broken open with his knowledge, and without

criminal intimacy had existed between approtest on his part, and the stolen articles

pellant and the deceased, Nellie McGuire, for divided among the crew, including the plain a number of years before her death, and tiff, then the law presumes the existence of also conduces to show that, except when he probable cause for the arrest, and they should

(appellant) was drinking, he was kind and find for the defendant. There is not an ele devoted to her. The testimony conduces to ment of dispute involved in this statement of show that appellant and deceased were seen facts. The jury could not, therefore, disbe- lying on the ground, apparently friendly and lieve them, if they would, and it would have sober, by several parties, and that Lon Purbeen an idle thing to submit the proposition sley and others, after spending some timeto them. Neither the guilt or innocence of

perhaps half an hour—with appellant and the plaintiff nor the truth of the information deceased, went, about 25 or 30 steps, down are involved. The foregoing principles are to the corner of Smith's garden fence, and conclusive of the case, and it is unnecessary took a drink. Then Lon Pursley went back to discuss the question of the appellee's sub to offer appellant, Bevill, a drink. On Purmission of the case to an attorney before sley's return, having been absent about five making the arrests, or the effect of the trial minutes, he saw appellant and deceased, in by the examining court. Judgment affirmed. a scuffle, standing up-his hands on her

shoulder or head, and her hands on his

shoulders. They scufiled a few minutes, and BEVILL V. COMMONWEALTH.

deceased fell to her hands and knees, and (Court of Appeals of Kentucky. Dec. 3, 1895.)

then rose about halfway up, made a step or HOMICIDE — IyVOLUNTARY_MANSLAUGHTER - IN two, and fell with her face down. Witness STRUCTIONS-EVIDENCE.

called to Jim Hale to come there; that Clar1. Defendant was charged with the murder of a woman with whom he was criminally ence Bevill was killing Nellie McGuire. intimate, and there was evidence that, except Then appellant ran off, about six steps to

the west, and squatted behind some bushes, asks a reversal upon several grounds. The and looked back over his shoulder at de indictment accused him of the murder of ceased. Witness called to him twice, but his wife, Annie Green. It appears from after the second call he jumped up and ran the testimony that at or about the same off. The deceased died in a few minutes, time of the killing of Annie Green he also her neck having been broken. We are not shot and killed Henderson Wakes. The eviprepared to say that the court should have dence of the killing of Wakes was allowed given any of the instructions as asked by to be proven over the objections of the apappellant, yet the court should have given pellant. The killing of Wakes was so nearan instruction on the law of involuntary ly simultaneous with the killing of Annie manslaughter. It would have also been Green that the fact that defendant killed proper to have instructed the jury, in sub Wakes was admissible, but it is argued that stance, that if they believed from the evi the entire evidence as to such killing should dence that appellant and deceased were in not have been admitted. It is also insisted a friendly scuffle, and that by accident her that the court erred in not instructing the neck was broken, they should find defendant jury in writing that the evidence as to the not guilty. It was error to admit the testi killing of Wakes should not aggravate nor mony of Bruce Pursley. The effect of such palliate the offense for which appellant was testimony could hardly fail to be prejudicial being tried. It seems to us that such into appellant. For the errors indicated the struction or admonition does not come withjudgment of the court below is reversed, in the rule of law requiring all instructions and cause remanded, with directions to to be in writing. It was sufficient for the award the appellant a new trial, and for court to properly admonish or instruct the further proceedings consistent with this jury as to the purpose of such evidence oralopinion.

ly, at the time it was introduced. It was error to admit the testimony of John McEl

roy as to what appellant said as to the killGREEN v. COMMONWEALTH.

ing of Wakes. Meriett Perry was permitted (Court of Appeals of Kentucky. Dec. 3, 1895.) to testify that appellant had often said to HOMICIDE-ORAL INSTRUCTION-WHEN PROPER him that he (appellant) intended to kill EVIDENCE.

Henderson Wakes. This testimony, it seems 1. Where defendant is on trial for killing to us, ought not to have been admitted. It his wife, and there is evidence that about the was also error to allow the commonwealth time he killed her he killed a certain man, the court need not instruct the jury in writing that

to prove by John Clark that appellant said the evidence as to the killing of such man

he would kill Henderson Wakes the first should not aggravate or palliate the offense for time he caught him out. The testimony of which defendant was being tried, but it is suf

Capt. Crane seems to have been almost ficient for the court to properly admonish or instruct the jury orally as to the purpose of

wholly directed to showing the manner of such evidence when it is introduced.

the killing, and, in so far as it related to 2. On trial of a person for murdering his such killing, was incompetent. Appellant wife, where the evidence showed that about the time the wife was killed defendant killed a cer

also complains of the refusal of the court to tain man, and that the killing of such man was allow him to prove that shortly before the so nearly simultaneous with the killing of the killing of his wife he had been informed wife that the fact that defendant killed him was

that she was criminally

criminally intimate

intimate with admissible, it was error to admit evidence of threats by defendant to kill him, and of what

Wakes. Such proof would have been no jusdefendant said as to the killing of such man. tification for the killing, yet it would have

3. In such case it was error to admit evi been proper to have admitted it. It may whence showing the manner of the killing of such

be conceded that the competent testimony man.

4. Where defendant is charged with killing conduces strongly to show that appellant his wife, and the evidence shows that about the was guilty of the crime charged, yet it may same time he killed a certain man, evidence is

be that, but for the errors complained of, admissible to show that shortly before the killing of the wife defendant was informed that his punishment would not have been fixed she was criminally intimate with the man. at death. The evidence of threats against Appeal from circuit court, Fayette county. killing, would tend to convince the jury that

Wakes, together with the proof as to the “Not to be officially reported."

appellant was guilty of two murders, alGeorge Green was convicted of murder,

though only on trial for one. The reasonable and appeals. Reversed.

tendency of such evidence would be to inJ. J. Osborne and D. A. Trapp, for appel- cline the jury to fix the highest degree of lant. William J. Hendrick, for appellee. punishment allowed by law, and such was

their verdict in this case. For the errors inGUFFY, J. The appellant, George Green, dicated, the judgment of the court below is having been indicted, tried, and convict reversed, and cause remanded for a ed in the Fayette circuit court of the crime trial upon principles consistent with this of murder, has appealed to this court, and I opinion.

which appellants were enjoined from approKENTUCKY NAT. BANK et al. F. LOUIS- priating any of the assets of the Louisville VILLE BAGGING CO. et al.

Bagging Company in payment, in whole or

in part, of the respective claims, except as (Court of Appeals of Kentucky. Dec. 6, 1895.)

the court might order, and from prosecuting ASSIGNMENT FOR THE BENEFIT OF CREDITORS-SUIT

an action for that purpose. The bagging BY ASSIGNEE-COSTS-COMMISSIONS.

pledged to the appellants was ordered sold. 1. Where an assignee for the benefit of

However, the order provided that all valid creditors, knowing that the trust property is subject to liens in an amount greater than its

liens on any of the property sold should atvalue, invokes the aid of equity in the settle- tach to the proceeds of the sale thereof. ment of the trust, the property so incumbered

The court also reserved the questions as to cannot be charged with any costs which would not necessarily have been incurred by the lien

what part of the assets should be charged holders had no suit been brought by the as- with the costs of such sale. The property signee.

mortgaged and pledged to secure the pay2. The assignee of an insolvent company,

ment of the debts which the Louisville Bagwhose property was pledged for more than its value, brought suit to settle the trust, and, re

ging Manufacturing Company owed the apfusing to turn over to the pledgees the property, | pellants was insufficient to pay them. The for which they held warehouse receipts, sold it

validity of the claims of appellants was confor less than the amount it was pledged to pay; the pledgees purchasing the same, and the pro

ceded in the petition filed to settle the trust, ceeds being applied on their claims. Held, that and the property upon which the liens existthe assignee was not entitled to commissions on ed described therein. The banks held the such sales.

warehouse receipts. The appellants being enAppeal from chancery court, Jefferson

court, Jefferson joined from appropriating the property pledgcounty.

ed to the payment of their debts, and from "To be officially reported."

bringing suits to enforce their liens, they Action by the Louisville Trust Company, were compelled to answer in this case, which trustee for the benefit of the creditors of the they did, setting up their respective claims. Louisville Bagging Company, against the Ken- The banks holding the warehouse receipts, tucky National Bank and others, to settle after the assignment, sought to have the Louisthe trust. From a judgment against defend- ville Trust Company turn over to them the ants for commissions on sales, attorney's fees, property on which they were issued, to pay and other expenses, defendants appeal. Re- their debts, but this effort failed. The trust versed.

company insisted on its right to have, and Humphrey & Davie, Strother & Gordon,

did obtain from the banks, the warehouse and W. B. Dixon, for appellants. Hargis &

receipts. The property, outside of that which Turner, Jr., for appellees.

was mortgaged, pledged, and in lien, was

insufficient to pay the expenses of this suit, PAYNTER, J. On the 2d day of March,

and some other expenditures made by the 1891, the Louisville Bagging Manufacturing

trustee. To cover this deficiency, the court Company made a deed of trust to the Fidelity

adjudged that the appellants should pay it, Trust & Safety-Vault Company, by which it

because they had received the proceeds of

the property upon which they held a first mortgaged to that company certain real es

lien. The question for review on this aptate and machinery to secure bonds, payable

peal is as to the correctness of that judgto bearer, amounting to $50,000. The prir

ment. cipal part, if not all, of these bonds were

The sums allowed by the judgment of the held by the appellants the Kentucky National

court are as follows: Bank, the Merchants' National Bank, and the National Bank of Cynthiana. This deed Attorney's fees for bringing suit to of trust created a first lien upon the prop

settle trust

$1,500 00

Commissioner's fee for stating acerty. To secure various notes which the

counts, etc.

200 00 Louisville Bagging Company owed the banks To Louisville Trust Company, 5 per named and the Louisville Banking Compa

cent. on $13,875, bagging pledged

to and sold Merchants' National ny, it pledged various lots of bagging. On


643 89 certain bagging, not pledged to the banks, an To Louisville Trust Company, 5 per execution, in which Ella Dolan was plain- cent. on $4,024.86, proceeds of bagtiff, was levied. There was but little prop

ging sold, which was pledged to
Kentucky National Bank....

201 24 erty owned by the bagging company which To Louisville Trust Company, 5 per was not covered by the liens mentioned, cent. on $1,353.57, proceeds of bagwhich amounted to many thousand dollars

ging pledged to Louisville Banking

67 68 more than the value of its assets. While in

To Commissioner H. V. Loving.. 433 85 this insolvent condition, on July 21, 1892, it To Louisville Trust Company, for made a deed of assignment to the Louisville

care of property.

200 00

Expenses taking care of property, etc. Trust Company of all its property, in trust

1,050 33 for the benefit of its creditors. On the 24th It was adjudged that the bondholders day of August, 1892, the trustee instituted should pay $2,958.96. Of the total amount this action to settle the trust. On the 12th of costs and expenses adjudged, $912.81 are of September, 1892, it procured an order by commissions, allowed the Louisville Trust Company on the sale of the bagging pledged of the holder. Primarily, it is not the proyto the banks. The Merchants' National Bank ince of a court to grant rights, but to enforce purchased the bagging which was pledged to those which exist. There was no question it, and the trustee never received or dis- as to the correctness of the several claims of bursed any part of the proceeds. The banks the banks, nor was there any as to the liens were represented by attorneys in the case. on the property. From the facts as they The exceptions filed by the banks to the com- appear in the petition, the trustee must have missioner's report questioned the right to al- known the mortgaged and pledged property low attorney's fees, the commissioner's fee was insufficient to pay the incumbrances on for making report as to state of accounts,

it. Therefore the action was not instituted, the 5 per cent. commission on the proceeds nor was it prosecuted, in the interest of the of the pledged bagging sold, and in ordering lien holders. The banks should not have that the trustee be reimbursed $210.10.

been ordered to pay fees to the attorneys of When an estate is assigned, and the trus- the trustee. Neither should they be chartee accepts the trust, he takes the property ged with the commissioner's fees for auditwith all valid liens and incumbrances on it. ing accounts, as his services were not essenThe trustee receives no greater interest in tial to aid the banks in the enforcement of the property than the assignor possessed. their liens. The principal work done by the Bank v. Stone, So Ky. 109; Bridgford v. Bar- commissioner, as to the claims of the banks, bour, Id. 529. “The assignee succeeds only was to make a statement of their claims, so to the rights of the assignor, and is affected as to show what part of the expenses of this by all the equities against him, and that he action the bondholders, and what part the takes the property subject to all equities. pledgees, should pay. We do not think the He takes subject to all existing liens, char- banks should be charged with any part of ges, and set-offs." Burrill, Assignm. $ 391. the commissioner's fees in making the report Certainly, no subsequent mortgagee, vendee, as to accounts, etc. or volunteer acquires equal or superior rights The banks desired to hold their warehouse in property to those under a valid prior mort- receipts, and have the bagging for which gage. The mortgagor could not make a sale they were given by the warehousemen turnof the property so as to affect a valid lien ed over to them. This the trustee refused to

His ability to affect such liens is not permit. This bagging was sold for less than increased when he becomes insolvent, and $20,000, while the claims it was pledged to seeks the aid of another to help appropriate pay amounted to more than that sum. The his property to the payment of his debts. Merchants' National Bank purchased the He cannot, by an assignment, impart a char- bagging pledged to it, for which it gave over acter to the claims of other creditors which $13,000, and the same was applied on its will enable them to appropriate the property debt. The trustee never received or disto the prejudice of a holder of a valid lien. bursed any part of this sum; still it was alIf the claims of the creditors cannot affect lowed a commission of 5 per cent. on that the rights of the holder of a valid lien, and amount, to be paid by the bank. Although the assignor can only vest the trustee with it is claimed the trustee was acting for the such interest in the property as he possesses, banks in this matter of selling the bagging, certainly the trustee cannot, in his effort to as a matter of fact the trustee was acting in pay unsecured debts, and, if possible, save opposition to their wishes, by refusing to something for the assignor, incur costs in turn over to them the pledged bagging, and such effort that can be paid out of the pro- in forcing a sale of the property, and in enceeds of the property upon which the lien deavoring to compel them to pay its commisexisted, so as to deprive the lien holder of sions out of property in which they had the amount of such costs. When a trustee practically the entire interest. In what the in an assignment for the benefit of creditors trustee was doing in this matter, it must be accepts the trust, he must understand that regarded as acting in the interest of the unhe takes it subject to incumbrances. If he secured creditors and the assignor. Howrushes into court to settle the trust, he must ever, in no event was the assignee entitled know that there are sufficient assets to pay to commissions on the sale of this bagging, the costs of the suit. If the estate is incum- for which the pledgees were responsible. It bered to its full value, he must know that does not appear from this record that the he can neither realize anything for the un- overdisbursement of $210.10 was to the secured creditors or his assignor. A trustee banks, as they do not seem to have received may invoke the aid of a court of equity in more than they were entitled to out of the the settlement of his trust. If there is no proceeds of the property mortgaged and estate except that which is bound to pay pre- / pledged to them. Therefore the court should ferred creditors, it follows that there are no not have ordered that the banks reimburse assets out of which to pay the expenses of the trustee such a suit, and he should not go into court In Re Dean, 86 N. Y. 398, it appeared that and incur costs. The court could not con- a man named Fry made an assignment for fer a right on the trustee to appropriate any the benefit of his creditors to a man named of the property on which the lien existed to Dean. The property was mortgaged for the payment of such costs, to the prejudice | $40,000. At the time of the assignment an

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