at Mrs. Barnes and the shot that wounded the [ and the defendant excepted. This evidence, defendant. Fred Racine said the shot that we think, was clearly competent upon the killed Mrs. Barnes looked like No. 6 or No. 7. question of motive to show the feeling of deProof was introduced by defendant of the fendant toward his wife In Childers v. weights of No. 5 and other sized shot and of Commonwealth, 161 Ky. 440, 171 S. W. 149, tests made by shooting No. 5 shot from de- this court said: fendant's gun through a fly screen, but not through glass, as the shots were fired that killed Mrs. Barnes, nor at the same angle, in an effort to prove that the shots that killed Mrs. Barnes could not have been fired by de

fendant.

[1, 2] We have given this rather lengthy résumé of the evidence on both sides, about the competency of which no question was made, in order to show, as we think it does most conclusively, that the court upon nei

ther the evidence of the commonwealth nor

upon all of the evidence erred in refusing to take the case from the jury. The evidence

of defendant's guilt is circumstantial, and upon some questions conflicting, but it is certainly such evidence as demanded a submis

sion to the jury (Johnson v. Commonwealth, 179 Ky. 40, 200 S. W. 35; Johnston v. Commonwealth, 170 Ky. 766, 186 S. W. 655), and will sustain the verdict (Okerman v. Commonwealth, 176 Ky. 753, 197 S. W. 385; Little V. Commonwealth, 177 Ky. 24, 197 S. W. 514; Martin v. Commonwealth, 178 Ky. 439, 198 S. W. 1158).

[3] 2. Complaint is made of the evidence of John Conyers, a policeman of the city of Owensboro, who testified that on August 24, 1916, at or about the time defendant and his wife separated, he arrested defendant for whipping his wife, to the admission of which defendant objected, and moved the court to exclude it from the jury, which the court declined to do, and defendant saved an exception. Without further objection from the defendant, the witness gave, in substance, the following testimony as to what occurred when the arrest was made:

"It is a uniform rule * * * in homicide cases to permit the commonwealth to give evidence of any pertinent facts or circumstances tending to show ill will or bad feeling on the part of the accused toward the deceased, or a motive that may have contributed to influence the commission of the act."

See, also, Day v. Commonwealth, 173 Ky. 269, 191 S. W. 105.

[4, 5] Complaint is also made that the court refused to permit Charles Dorn to testify that he knew Mrs. Racine and Nellie Blan

ford, and that he had seen the former drive

into an alleyway and go into the place of the latter, who was proved to be a woman of immoral character. If the purpose of this testimony was to impeach the character of Mrs. Racine, a witness for the commonwealth, it was clearly inadmissible, because evidence of particular acts is not admissible for that

purpose. It was likewise inadmissible if, as stated by counsel for defendant in brief, it

was offered for the sole purpose of contradicting Mrs. Racine, who admitted that she delivered butter and milk at the place of Nellie Blanford, but denied that she had ever approached the house from the alley. Whether or not she had, in fact, upon one occasion gone to the house through the alley was wholly immaterial, and evidence to contradict her on that point was irrelevant and incompe

tent.

[6] Defendant also complains that he was not permitted to prove by Lou Argust, a clerk in the store of S. W. Anderson & Co., that she called Mrs. Barnes on the telephone at Mrs. Racine's home a short time before she heard of the murder, but whether the day before or not she could not state, and had a conversation with Mrs. Barnes about coming "He was complaining something about her not to the store for a certain coat at a certain staying at home. It seemed like that that was time. We are unable to see the relevancy of the trouble between them. that she did not stay at home like he thought she ought to." "When this evidence, as it could neither contradict I arrested him on that day, Judge, he told me Mrs. Racine, who denied that Mrs. Barnes that he was going to treat her worse than that had called up Lou Argust, nor corroborates if she didn't discontinue the way she was doing. the defendant, who testified that on the day I found her out there, and as I approached the house he seen me and run out the back way, of the murder, in the presence of Mrs. Raand when I got in the house the furniture some cine and himself, his wife called up Lou Arof it was broken up, and I think there was one gust and told her she would come for a cerlooking-glass broken and some pictures and stand table, and she had her shirt waist torn tain coat suit the next day, as the witness and she had red places on her throat where stated that at the time she had the conversashe said he had choked her. The Court: Do not tion with Mrs. Barnes she called up Mrs. state what she said. The Witness: He ran Barnes, not that Mrs. Barnes called her. about six squares, I think. I found a big knife in his pocket open. I brought him on to police [7] It is also insisted that the court erred headquarters. I says, 'Bill, what do you mean in excluding the evidence of Ada Lyons, sisby this way of doing?' I said, "That is awful ter of defendant, that in the month of Octoto treat your wife that way'; and I think about the substance of his remark was that 'she don't ber, while Mrs. Barnes was at the home of treat me right' and says, 'If she don't stop what Mr. and Mrs. Racine, the witness was there she is doing, I am going to treat her worse than on a visit, and while there Mrs. Racine was in the habit of drinking, and was frequently intoxicated, and in that condition was quarrelsome, and upon one occasion Mr. and Mrs. Racine had a quarrel because he did not

that.'

Defendant moved to exclude from the consideration by the jury all of the evidence of this witness, which motion was overruled,

want her to go to a pie supper in her then, for the exercise of improper influence upon state of intoxication. This evidence was members of the jury. Campbell v. Commonclearly inadmissible for the same reasons wealth, 162 Ky. 106, 172 S. W. 110. In this that the testimony of Charles Dorn was in case the commonwealth filed the affidavit of admissible. the two jurymen and of the sheriff showing that the separated jurors were out of the presence of the sheriff and the rest of the jury for a few minutes only, and during that time did not engage in conversation with any outsiders, and did not themselves discuss or refer to the trial in any way; and this evidence is wholly uncontradicted. The separation was therefore not prejudicial to the substantial rights of the defendant. Deacon v. Commonwealth, 162 Ky. 188, 172 S. W. 121; Johnson v. Commonwealth, 179 Ky. 40, 200

[8] 3. The third ground relied upon for reversal is that the court failed to instruct the jury upon the whole law of the case, although it is stated by counsel for defendant, in brief: "We are not prepared to point out to the court any error in the instructions given, nor are we certain of our position relative to the giving of any further instructions by the court to the jury."

The court gave instructions, correct in form, upon murder, reasonable doubt, and defining the technical terms used. There was no evidence whatever upon which to have based another instruction. The defendant was guilty of murder or nothing; and it has frequently been held by this court that the instructions should submit the issues only to the jury, and it is neither necessary nor proper to give an instruction unless there is some evidence upon which to base it. Curtis v. Commonwealth, 169 Ky. 727, 184 S. W. 1105; Day v. Commonwealth, 173 Ky. 269, 191 S. W. 105; Johnson v. Commonwealth, 179 Ky. 40, 200 S. W. 35.

[9, 10] 4. After the jury had been sworn and when the court had adjourned for noon upon the first day of the trial, the sheriff started with the jury in charge to a hotel some squares distant for dinner, and one of the jury, who weighed about 340 pounds, said he was not well and did not feel able to walk to the hotel. Another juror, who had an automobile standing near the courthouse, offered to take him in the automobile if the sheriff would permit him. The sheriff gave his permission, and, with the rest of the jurors, proceeded to the hotel on foot while these two jurors went in the automobile, one being upon the front and the other upon the rear seat. The two jurors were out of sight and hearing of the sheriff and the rest of the jury for but a very short time, as they overtook the sheriff and those jurors on foot and drove along within 30 feet of them in their sight to the hotel, where they all joined again. Mr. R. P. Robertson, an attorney of the Owensboro bar, noticed this separation, and, when court convened after noon, reported the fact to defendant's chief counsel. The fact does not seem to have been called to the court's attention by the attorney for the defendant or by any one until after the verdict, when it was presented in a motion and grounds for a new trial.

S. W. 35.

wealth, 163 Ky. 518, 174 S. W. 19:
[11] Again, as said in Heck v. Common-

"It has been held by this court that the accused may waive his right to object to permitting the jury to separate."

In Black v. Commonwealth, 154 Ky. 144, 156 S. W. 1043, it was said:

"When a new trial is asked on the ground that a juror has been guilty of misconduct, the person seeking a new trial on this ground should do so at the earliest moment after he has received information of the misconduct complained of, and should file his affidavit stating where he obtained the information. If the party seeking a new trial on this ground fails to do this, he will be deemed to have waived his right to rely on the misconduct as a ground for a new trial after there has been a verdict against him."

In Drake v. Drake, 107 Ky. 32, 52 S. W. 846, a civil case, but the rule is nevertheless applicable, it was said:

"A party should not, with knowledge of misthe court, and take a chance on a verdict in conduct on the part of the jury, conceal it from his favor, with the expectation of having it set aside if adverse to him."

[12, 13] Counsel for defendant do not question the rule, but seek to avoid its enforcement here upon the ground that knowledge of the separation was imparted, before the verdict, to one of the attorneys for the defendant, and not to the defendant himself, who is not to be charged with the knowledge of his attorney which is not shown to have been possessed by him.

This contention, however, cannot be sustained. The general rule is that notice to an attorney is notice to the client employing him and that knowledge of an attorney is knowledge of the client. 6 C. J. p. 638; 2 R. C. L. p. 962. All of the authorities cited in both of these treaties in support of this rule are civil cases, but we are unable to conceive of any reason why it should not While we fully appreciate and approve the appear as well and as fully in criminal prosrigidity of the rule against permitting a ecutions, and we have found no authority separation of the jury in a case where capi-making any such distinction. However that tal punishment may be inflicted, we do not think this separation furnishes, under the circumstances, grounds for a reversal. Whenever there has been a separation of the jury, it devolves upon the commonwealth to show that such separation gave no opportunity

may be, we are quite sure that the facts here present no reason for an exception to the general rule. Counsel for the accused was in possession of information of conduct upon the part of some of the jury which, in the discharge of his duties in the manage

ment of his client's defense, he should have imparted not only to his client, but to the court as well, and before verdict, and it must be presumed that he performed his duty and imparted the knowledge to his client. In 12 Cyc. 735, in reference to a new trial in a criminal case upon newly discovered evidence, it is said:

"Evidence is not newly discovered which defendant knew, but did not mention to his counsel, or which was known to his counsel and not

communicated to defendant."

And the same rule unquestionably would apply to knowledge of a separation of the jury as to newly discovered evidence, upon a motion for a new trial.

[14, 15] 5. The last ground urged for a reversal is alleged newly discovered evidence.

Section 271, Criminal Code, provides: "The court in which a trial is had upon an issue of fact may grant a new trial, if a verdict be rendered against the defendant by which his substantial rights have been prejudiced, upon his motion, in the following cases:

"6. If the defendant have discovered impor

tant evidence in his favor since the verdict."

The Criminal Code does not prescribe the practice on applications for a new trial, other than to prescribe the time in which the motion must be filed, and in section 274 that: "The grounds upon which a motion for a new trial is made must be stated in writing, and filed at the time of making the motion."

necessary means of preventing a new trial upon the affidavit of the defendant alone as to what the newly discovered witnesses would testify; and the meaning and purpose of both the statute and the rule is to prevent new trials except in meritorious cases. Whether or not a new trial shall be granted is always within the sound judicial discretion of the trial judge, and the Legislature necessarily left the question of practice largely to be regulated by the courts, prescribing only that, unless the motion was in writing, filed in a certain time and sup

ported by affidavits, it must not be granted.

These provisions are jurisdictional only, and clearly not intended to hinder the court tion of the newly discovered evidence, before from making a full and satisfactory examinaexercising the sound judicial discretion he is required to exercise. While it has been the usual, but not the uniform, practice for trial courts, in the examination of the materiality of newly discovered evidence and of the probability that defendant can produce such evidence upon another trial, to limit the parties to proof upon affidavits, there is nothing in any provision of the Code or of any rule approved by this court which would preclude the trial court, after the defendant has filed a proper affidavit, from setting a day for hearing and subpoenaing the new witnesses to appear upon that day to be examined by the attorney for the defendant and cross-examined by the attorney for the commonwealth; and such a practice unquestionably would enable the court much more intelligently and accurately to decide the questions to be determined, viz. the materiality of newly discovered evidence, and whether, as a matter of fact, the defendant could prove by the new witnesses the facts to which in his affidavit he has sworn they will testify. Unless he can prove such facts, the new trial ought not to be granted, and the best test of whether or not he can do so is unquestionably an examination of these witnesses before the court.

Where application for a new trial is made upon the ground of newly discovered evidence, the practice is the same in criminal, as in civil cases. Hays v. Commonwealth, 140 Ky. 184, 130 S. W. 987; Ellis v. Commonwealth, 146 Ky. 715, 143 S. W. 425. Section 343, Civil Code, provides that a motion for a new trial upon the ground of newly discovered evidence "must be sustained by affidavits showing their truth; and may be controverted by affidavits." This has been construed by this court in criminal, as well as in civil, cases to require that defendant file his own affidavit setting out the material facts that he can prove by the newly discovered wit[17] This case presents a splendid illustraness, and that he did not know, and by the tion of the value, and in fact the necessity, of exercise of reasonable diligence could not requiring the attendance for examination and have known, of the existence of the newly cross-examination of the newly discovered discovered evidence until after the trial had witnesses, if the court is to reach an accurate concluded. Bronson v. Green, 2 Duv. 234; and intelligent conclusion as to the necessity Ellis v. Commonwealth, 146 Ky. 715, 143 for a new trial, and such a practice is most S. W. 425. And in support of his affidavit certainly not an abuse of his discretion. In the defendant must satisfy the court by the the affidavit filed by defendant he swore that affidavit or testimony of the newly discover- the witnesses would testify to facts which, ed witnesses that they will so testify. In enforcing the rule as to supporting affidavits, this court in Bowling v. Commonwealth, 148 Ky. 9, 145 S. W. 1126, said:

if true, would have been material, and, if due diligence had been shown, to have denied him the opportunity to present such evidence would have been prejudicial to his substan"But he did not support his affidavit by their tial rights. Yet these witnesses, when examaffidavit that they would so state or by the tes-ined in open court, refused to testify to any of timony of any other person. This should have been done; for, were the rule otherwise, there would be no certainty that anything would be gained by granting a new trial."

[16] The rule as to supporting affidavits or evidence is not an express provision of any

the material facts to which defendant in his affidavit stated they would testify; and their testimony is wholly immaterial and affords no reason whatever for granting the defendant a new trial. We therefore approve of

court setting a day and requiring the at- ton and Nat. C. Cureton, both of Louisville, tendance of the newly discovered witnesses Chas. H. Morris, Atty. Gen., and D. O. Myfor examination upon the trial of the question att, Asst. Atty. Gen., for appellees. of granting a new trial upon the ground of newly discovered evidence, or alleged misconduct of the jury, whether upon motion of the defendant, as here, or upon motion of the other party to the litigation, which evidence should, of course, be preserved and made part of the record, so that it may be considered upon appeal.

Perceiving no prejudicial error to defendant's substantial rights, the judgment is af

firmed.

LOUISVILLE RY. CO. et al. v. DUGAN,
Clerk of Circuit Court, et al.
(Court of Appeals of Kentucky. March 15,
1918.)

1. COSTS 32(1)—JURY FEES-PERSONS LIA

BLE.

SAMPSON, J. This action was instituted to obtain an injunction restraining Frank Dugan, clerk of the Jefferson circuit court, from issuing executions for jury fees of $4 each in about 350 cases tried in the Jefferson circuit court in which the Louisville Railway Company and the Louisville & Interurban Company were the successful parties litigants, and against whom the clerk, it is charged, was about to issue the executions as provided in section 2274, Kentucky Statutes. The commonwealth, on relation of Robert L Greene, auditor, presented a petition to be made a party defendant, and this was done. Thereupon the defendants filed a demurrer to the petition, which was sustained, and the action dismissed.

The sole question for determination is: In view of Ky. St. § 2274, providing that, if the jury fee is not paid to the clerk before Who is primarily liable for the jury fee, the adjournment of court, he shall within 20 days successful or unsuccessful party to the acafter adjournment issue execution for the same, tion, which the state is entitled to collect and section 2273, providing that, if the success in every case where a jury is impaneled and ful party shall fail to pay the jury fee, the opposite party may pay it to the clerk, which shall sworn in a circuit court? Some years ago be credited on the judgment and execution, and two eminent judges of the Jefferson circuit section 1743, providing that the clerks of the court, upon a consideration of the question, circuit court shall tax as costs of the plaintiff in a written opinion, held the unsuccessful or "other persons responsible to the commonwealth for the same" the jury fees collected by party liable primarily for the jury fees. Pursaid clerks and section 4244, making clerks suant to this rule, the clerk of the Jefferliable on their bonds for failure to issue execuson circuit court has since that time consisttion within 20 days after adjournment, Ky. St. $2271, providing that the jury fee shall be "paid to the clerk" by the successful party, is not inconsistent with section 2260, providing that the jury fee shall be taxed as costs against the unsuccessful party, since the jury fee act, being a revenue measure merely, makes the successful party primarily liable, and the unsuccessful party ultimately liable.

ently required the unsuccessful party to pay the fee. Recently four judges of the same court, after having the matter brought to their attention, in a written opinion by Judge Gordon held the converse of the former opinion, and required the successful party to pay to the clerk the jury fee. Other circuit courts and their clerks throughout the commonwealth have had more or less trouble with this question, although it has never been presented to this court on appeal. In the case at bar appellants charge they are about to be proceeded against by execution in 350 cases, which at $4 per jury fee amounts to $1,400, and they invoked the rule giving a court of equity jurisdiction by injunction to prevent a multiplicity of suits growing out of the same transaction or arising from the same common cause. Illinois Railway Co. v. Baker, 155 Ky. 512, 159 S. W. 1169, 49 L. R. A. (N. S.) 496; Buckeye Garment Co. v. Hieatt et al., 177 Ky. 783, 198 S. W. 21.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division. Proceedings by the. Louisville Railway Company and the Louisville & Interurban [1, 2] The jury fee act is a revenue measRailroad Company to enjoin Frank Dugan, ure purely, and intended to contribute to the Clerk of the Jefferson Circuit Court, from is- expense which the state undergoes in mainsuing executions for jury fees. The Com-taining the jury system. Sections 2260 and monwealth, on relation of Robert L. Greene, 2271, Kentucky Statutes, at first glance apAuditor, on petition, was made a party de- pear to conflict, but they are easily reconciled fendant. On demurrer the action was dis- when considered in connection with other missed, and plaintiffs appeal. Affirmed.

Howard B. Lee and Straus, Lee & Kreiger, all of Louisville, for appellants. J. M. Chil

acts relating to jury fees and the taxation of the same as cost. It is provided in section 2260 that:

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

"In the circuit court a jury fee of four dollers shall be taxed as costs against the unsuccessful party."

By section 2271, Kentucky Statutes, it is provided:

"Upon the return of a verdict into court by the jury, a dismissal or judgment of nonsuit, or the withdrawal of a jury by consent after it has been sworn, a jury fee of four dollars shall be paid to the clerk by the successful party, in the first two cases, before any execution shall issue on the judgment. In the latter case the jury fee of four dollars shall be paid by the party-plaintiff, and in each case to be taxed as costs."

From these two sections it will be seen a distinction is made between the expression "a jury fee of four dollars shall be taxed as cost" and "a jury fee of four dollars shall be paid to the clerk." The payment to the clerk is required to be made immediately upon the return of the verdict, dismissal, or nonsuit, and in case of the failure of the successful party to make such payment no execution on the judgment shall issue in his behalf. The taxation of costs referred to in section 2260 has reference to that made at the termination of the litigation.

"If the jury fee is not paid to the clerk before the adjournment of court, he shall, within twenty days after the adjournment, issue execution for the same in the name of the commonwealth, to be collected and accounted for by the sheriff." Section 2274, Kentucky Statutes. This execution must issue against the successful party, because he is the only person required at that early date to pay same.

"If the successful party shall fail or refuse to pay the jury fee, the opposite party may pay it to the clerk, which shall be credited on the judgment and execution against him." Section 2273, Kentucky Statutes.

the hands of the sheriff, within twenty days after the adjournment of each term of their respective courts, upon all jury fees which remain unpaid; and, upon failure to do so, shall be held responsible on their official bonds for the amount of such jury fees upon which they had failed to issue executions."

It will be noticed that this section refers to the 20-day provision of section 2271, and plainly indicates that the execution shall issue against the successful party.

As we construe the statutes, section 2271 fixes the primary liability between the parties for the fee, so that the state may not be delayed in the collection of its revenue, while section 2260 declares which party to the action shall ultimately bear the burden, and requires the jury fee to be taxed in the costs against the unsuccessful party.

[3] So reading the two sections together, there is no conflict. An often invoked rule of construction, where two acts or sections of the statutes appear to conflict, requires that each section or act shall be given that meaning which will most completely effectuate the legislative intention without running counter to the other, thus harmonizing and bringing the two into a consistent whole. As said in Bowman v. Hamlett, 159 Ky. 184, 166 S. W. 1008:

"Conflicting portions of the act should be reconciled, if possible, without disregarding the intent of the Legislature."

This being a revenue measure, the Legislature undertook to so fix it that the state in no event would lose the jury fee. In its efforts to do this the successful party is made primarily liable for its payment, but in case of failure of the successful party to pay the same, either voluntarily or upon execution, then the unsuccessful party is responsible when the costs are taxed, and the clerk in taxing the costs must finally place the jury fee against the unsuccessful party. Nor is this all: If the clerk fails to issue the execution for the jury fee within 20 days, he shall thereupon become liable for the same

on his official bond.

The clause in section 2271 reading, “A jury fee of four dollars shall be paid to the clerk by the successful party,

* before

By section 1743, Kentucky Statutes, it is provided that the clerks of the circuit courts shall tax and allow as part of the cost of the plaintiff, appellant, traverser, or other persons responsible to the commonwealth for the same, the tax on law processes and official seals and jury fees collected by said clerks. From this it is manifest that the jury fee is payable by the party primarily responsible to the commonwealth for the same, and that at the conclusion or final determination of the litigation the same shall be taxed by the clerk against the unsuccess- any execution shall issue on the judgment," ful party and in favor of the successful is intended to encourage the payment of such party. Going back to the expression used in fees, and does not relieve the successful parsection 2260, "a jury fee of four dollars shall ty of paying same if he neglect or fail to be taxed as costs," it may be said that the cause an execution on the judgment to isexpression "taxed as cost" means the final sue. fixing by items of the sums due by and collectible from each litigant, and this taxation cannot be made until a final determination of the suit. The only other section of the statute directly relating to jury fees is section 4244, and is as follows:

"It shall be the duty of the clerks of circuit courts to issue executions and place them in

We therefore conclude that the lower court

correctly held the successful party litigant primarily liable for the jury fees, and properly dismissed plaintiff's petition. These fees when paid by the successful party must ultimately be allowed to him and taxed as cost against the unsuccessful party. Judgment affirmed.