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(232 S.W.)

charged to obtain any information concern-
ing the formation of the jury and the mem-
berg thereof. The order in question suffi-
cientl
shows that the grand jury came into
court, and, after answering to a call of their
names, reported into court an indictment ac-
cusing Mike Duroff, etc., of the crime of
grand larceny. But it is urged that the ab-
breviation "etc." appearing after the name
Mike Duroff is not sufficient to indicate that
the indictment included the name "Nick
Duke" or any other person than Mike Du-
roff. This abbreviation is from the Latin
"et cetera," meaning "and others" or "and
so forth," and is in common use and is gen-
erally understood to mean what the words
imply. The order indicated that there was
more than one defendant named in the in-
dictment, and the indorsement on the back
of the indictment set forth both names. The
order filing the indictment was defective,
but was a substantial compliance with the
Code provision, and did not entitle the ap-
pellants to a quashal of the indictment.

[2] 2. No incompetent evidence is pointed out by the appellants. It is true the whole case is one of circumstantial evidence but the crime of grand larceny as well as other crimes are often so proven. Davis v. Commonwealth, 191 Ky. 242, 229 S. W. 1029.

[3] 3. The attorney for the commonwealth should not have asked the appellant Mike Duroff if he had not murdered and robbed his father in the old country, or if he had not told some one he did so, but the objection of appellants to these questions were both promptly sustained by the trial judge, who stated in the presence and hearing of the jury, "It is incompetent and not necessary to ask him any more about it." No other question was asked along this line. There was no motion by appellant to discharge the jury, and, if there had been, we do not think the conduct of the commonwealth's attorney in asking the incompetent questions was such as to have warranted the court in sustaining such motion. In the light of what took place we do not think the substantial rights of the appellants were prejudiced.

[4-6] 4. The record does not show the appellants moved the court for an interpreter, but there is some slight indication that such a request was made some time during the trial. Whether the request or motion was acted upon does not appear. The trial court is vested with a broad discretion in the matter of calling an interpreter to be exercised according to the facts of each case. If the witnesses are unable to understand and speak the English language, the court should either on motion or on its own knowledge call a competent qualified person to translate and interpret the questions propounded and the answers given thereto, but where the witnesses are able to understand and speak the English language, even imper

232 S.W.-4

fectly, but so as to make themselves under-
stood and to convey their thoughts and ideas,
no interpreter should be called or allowed.
Nioum v. Commonwealth, 128 Ky. 685, 108
S. W. 945. The witnesses in the case at bar
were able to speak and understand the Eng-
lish language reasonably well, as the record
fully discloses, and there was no real neces-
sity for an interpreter. This is true even in
cases where the witnesses do not at first
understand the question and it has to be re-
peated to him, if he can be made with rea-
sonable effort to understand the question.
Aside from this, the record does not show
that appellants moved for appointment of an
interpreter, and such objection comes too late
when made for the first time in the motion
and grounds for a new trial.

[7] 5. We cannot agree with learned coun-
sel that the facts proven by the common-
wealth were not sufficient to carry the case to
the jury. Appellants and Joe Tots who
owned the watches and other stolen property,
and Pete Maliva slept in the same room. Tots
got up early and went away, later Maliva
arose and left the house, but appellants re-
mained in bed. About 9 o'clock appellants
arose and went to breakfast, and soon left for
Prestonsburg, ostensibly to buy some shoes.
When Tots returned to the room he found
his trunk broken open and his watches and
chains and two finger rings missing. He
raised an alarm, and the city marshal was
notified. He called the marshals of some
nearby towns and asked them to keep a look-
out for the appellants and to arrest them.
They were arrested in a pool room of a neigh-
boring town and returned by the officer mak-
ing the arrest to Wayland where the larceny
was committed. It was about 10 miles, and,
as there was no train going that night, the
officer walked his prisoners all the way. At
the time of arresting them he says he made
no search of the persons of appellants to find
the stolen jewelery, but only searched them
for weapons. After they had traveled along
the railroad for a considerable distance one
of the appellants asked to be allowed to
withdraw, for private reasons, to the road-
side. This the officer consented to do. The
other appellant went a short distance ahead
and was seen by the officer to make a motion
as if casting something from him. Next day
the officer returned to the place where the
first appellant stopped on the roadside and
there he found one of the stolen watches and
chains. The next day the officer found at the
place where the second appellant was seen to
make the motion as if casting something from
him the other watch and chain and one of the
stolen rings. This was several miles from
where the property was stolen. Under these
facts the jury was fully justified in finding
the appellants guilty of the crime charged.
Appellants were not entitled to an instruction
to the jury to find them not guilty.

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[8-10] 6. Complaint is made, that the in-police and firemen" and their dependents, "and structions were so drafted as to require the jury to find both defendants guilty if either were found guilty. This complaint is well founded. There is no provision in the instructions for the jury to find one of the defendants not guilty even though it should not believe from the evidence that he was guilty, although it believed from the evidence beyond a reasonable doubt that the other defendant was guilty of the crime charged in the indictment. In a criminal case it is the

* a board of trustees for the management" thereof, etc., is not misleading on the ground it cannot be fairly deduced therefrom additional tax, as provided in the body of the that the fund was to be created by levying an act; the levying of such a tax not being foreign to the title or subject thereof. 2. Statutes 109-Act not to be declared unconstitutional, because subject not not expressed in title, unless variance within range of evils guarded against,

Before any act is declared unconstitutional, under Const. § 51, on the ground that the subject is not expressed in the title, the variance should be such as to bring it within the range of the evils sought to be guarded against; all doubts being resolved in favor of its validity.

to same subject and are naturally connected with and not foreign to subject expressed in title, act complies with Constitution. There is a sufficient compliance with the

duty of the court to give the whole law of the case, whether asked by the defendant or not (French v. Commonwealth, 28 Ky. Law Rep. 64, 88 S. W. 1070; Thompson v. Commonwealth, 122 Ky. 501, 91 S. W. 701, 28 Ky. Law Rep. 1137; Gordon v. Commonwealth, 3. Statutes 107(1)-If all provisions relate 136 Ky. 508, 124 S. W. 806), and in a case where the evidence is all circumstantial it is further the duty of the court to give the whole law of the case as applicable to any state of facts which may arise under the requirement of Const. § 51, that no law shall circumstantial evidence (McDowell v. Com-relate to more than one subject, which shall be expressed in the title, when all the provimonwealth, 4 Ky. Law Rep. 353; Hobson on sions of the act relate to the same subject, Instructions, p. 794). and are naturally connected with and not foreign to the subject expressed in the title. 4. Statutes 107 (5)-Act relating to pensions for firemen and policemen held not to violate Constitution, as relating to more than one subject.

But a court is never required to nor should it give an instruction which finds no support in the evidence. There is not a word of evidence which would tend in the slightest degree to prove or even indicate that one of appellants were less guilty than the other if either was guilty. Both were guilty under the evidence or neither was guilty. The jury could not upon reason have found one guilty and the other not guilty. Such a verdict could have resulted only from caprice.

While ordinarily an instruction in a case like this, where there are two defendants, should allow the jury to find either one or both of them guilty or not guilty, the particular facts of this case did not warrant such an instruction, and, if given, would not have been proper, though it would not have been harmful or prejudicial to the commonwealth, From a review of the whole record we are of the opinion that defendants have had a fair trial, and the judgment is affirmed.

(192 Ky. 60)

STONE v. CITY OF LEXINGTON et al. (Court of Appeals of Kentucky. June 17, 1921.)

1. Statutes 120 (5)-Provision for levying tax to create pension fund for police and firemen not foreign to title or subject of

act creating such fund.

The police and fire departments being two divisions of one branch of municipal administration, the Public Safety Acts 1920, c. 28, amending and re-enacting Ky. St. 1915, §§ 3138, 3140, creating a pension fund for disabled firemen and policemen and their dependents, and amending two sections of one act vesting in fire departments, does not violate Const. § 51, commissioners control of both the police and providing that no law shall contain more than one subject, which shall be expressed in the title; an act being sustained if its provisions relate to one general subject and are germane to that expressed in the title, notwithstanding some of them may relate to some other subject.

Appeal from Circuit Court, Fayette County. Suit by Wilbur C. Stone against the City of Lexington and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Fred H. Ryan, of Lexington, for appellant.. W. H. Townsend, Jas. A. Wilmore, and Harry Miller, all of Lexington, for appellees. Hazelrigg & Hazelrigg, of Frankfort, for intervening petitioners.

QUIN, J. At its 1920 session the General

Assembly of the commonwealth of Kentucky passed an act entitled:

The title of Acts 1920, c. 28, "to amend and re-enact" Ky. St. 1915, §§ 3138, 3140, "be- "An act to amend and re-enact sections 3140 ing a part of the charter of cities of the sec- and 3138, Kentucky Statutes, Carroll's 1915 ond class, for the better government," etc., Edition, being a part of the charter of cities "of the police and fire department and to cre- of the second class, for the better government ate and perpetuate a pension fund for disabled administration and disposition and discipline

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

(232 S.W.)

of the police and fire department and to create [the 1920 act, was held void for uncertainty. and perpetuate a pension fund for disabled With this exception, the validity of this act police and firemen, their widows and children has been sustained by this court, which fact and dependent fathers and mothers, and to cre- disposes of the second point urged by appelate and perpetuate a board of trustees for the lant. The levying of a tax to create and management and conduct thereof, and to pension members thereof after service of a term maintain the fund is certainly not foreign of years." to the title or subject of the act. It must be obvious to one reading the title that in the body of the act would be found the means whereby the fund was to be created and maintained. And would not the natural source of revenue or income be from taxation?

In this suit by appellant, a resident and taxpayer of the city of Lexington, against the mayor and commissioners of the latter city, the constitutionality of the foregoing act is brought in question. But two points are relied upon, viz.: (a) The act violates section 51 of the Constitution; and (b) the title is misleading and deceptive, in that it cannot be fairly deduced from a reading thereof that the fund was to be created and perpetuated by the levying of a new and ad⚫ditional tax as provided for in the body of the act.

The opinion in the Schmid Case, supra, was rendered during the legislative session of 1912, at which session acts amendatory of the laws relating to pensions for members of both the police and fire departments in firstclass cities were passed. Acts 1912, pp. 372 and 428. Parts of the 1912 act were construed in Head v. Jacobs, 150 Ky. 290, 150

The constitutional provision above refer- S. W. 349. red to reads thus:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amend-prevent log-rolling legislation, or surprise or ed, extended or conferred, shall be re-enacted and published at length."

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It is argued the act relates to more than one subject in that it deals with a police and fire commission and provides for the creation of a board of trustees to administer the pension fund; i. e., it refers to both a police and fire commission and to a new governing body known as the "board of trustees." The title of this act is almost a literal copy of the title to a similar act applicable to cities of the first class, approved February 19, 1902 (page 3 of the Session Acts of that year); the only difference between the two titles being that the act in the present suit creates a fund for both policemen and firemen, whereas the act pertaining to cities of the first class applies only to firemen, for the manifest reason, however, that there was a separate and earlier act applicable to the police department, to wit, an act approved March 16, 1900 (Acts 1900, c. 8). Not only is there a striking similarity in the titles of the two acts (1902 and 1920), but by a comparison of the body of each it will be found that sections 16 to 32 of the earlier act have been followed in the main in the act pertaining to cities of the second class. This 1902 act has been before this court on three separate occasions, to wit: Board of Trustees of Firemen's Pension Fund v. McCrory, 132 Ky. 89, 116 S. W. 326, 21 L. R. A. (N. S.) 583; Tyson v. Board of Trustees of Firemen's Pension Fund, 139 Ky. 256, 129 S. W. 820; Schmid v. Board of Trustees of Firemen's Pension Fund, 146 Ky. 335, 142 S. W. 688. [1] In the latter opinion section 24 of the 1902 act, which corresponds to section 11 of

[2] The constitutional provision, supra, has always been liberally construed by the courts; all doubts being resolved in favor of the validity of the legislative action. Bowman v. Hamlett, 159 Ky. 184, 166 S. W. 1008. The purpose of the provision was to fraud upon the Legislature, by means of provisions in bills of which the titles give no intimation, and which might, therefore, be overlooked, and carelessly or unintentionally adopted. Cooley on Constitutional Limitations, p. 205.

Hence before any act of the General Assembly is declared contrary to the Constitution on the ground that the subject of the act is not expressed in the title, by reason of a variance between the title and the body of the act, it should be made to appear to the satisfaction of the court that the alleged variance is such as to bring it within the range of the evils sought to be guarded against, and such as to justify its condemnation upon that ground alone. See Fry et al. v. Commonwealth, 166 Ky. 670, 179 S. W. 604.

[3] There is a sufficient compliance with the requirement of section 51 when all the provisions of the act relate to the same subject and are naturally connected, and are not foreign to the subject expressed in the title. Burnside v. Lincoln County Court, 86 Ky. 423, 6 S. W. 276, 9 Ky. Law Rep. 635; Williams v. Wedding, 165 Ky. 361, 176 S. W. 1176; Larue v. Redmon, 168 Ky. 487, 182 S. W. 622; Lang, Judge, v. Commonwealth, 190 Ky. 29, 226 S. W. 379. To illustrate: An act, entitled "An act to carry on business under an assumed or fictitious name," was held not violative of the section, supra, though in the body of the act it was made unlawful for any person to carry on business in this state under an assumed name, or under any designation, name, or style, corporate or otherwise, other than the real name of those conducting such business. Commonwealth v.

Bassett et al., 171 Ky. 385, 188 S. W. 459. | plication to the state of Kentucky, and canA like conclusion was reached in Smith v. not apply to an offense committed in an adCommonwealth, 175 Ky. 286, 194 S. W. 367, jacent state.

where the validity of an act to regulate, 2. Criminal law 18-Statute denouncing oplicense, and govern the use of motor vehicles eration of a still does not apply where still was upheld, though it was provided in the was without the state. act that the license fees should be paid into the state road fund; the regulation of motor vehicles and the payment of license fees into the road fund-i. e., the setting apart of fees for a revenue purpose (the improvement of the public highways)-not being separate and distinct subjects.

[4] Notwithstanding some of the provisions of an act might have relation to some other subject, if the provisions of the act relate to one general subject, all of which are germane to the one expressed in the title, the act will be sustained. For example, in McGlone v. Womack, 129 Ky. 274, 111 S. W. 688, 33 Ky. Law Rep. 811, 864, 17 L. R. A. (N. S.) 855, it was held that an act to promote the sheep industry and to provide a tax on dogs related to but one subject, viz. the promotion of the sheep industry by the imposition of a tax on dogs for the purpose of creating a fund to remunerate the owners of sheep killed by dogs.

In reality the police and fire departments are two divisions of one branch of municipal administration, to wit, the public safety. The act whose validity is attacked in this suit is for one purpose only; that is, the creation and maintenance of a pension fund for the benefit of disabled firemen and policemen and for the members of their families. It is amendatory of two sections of one act, viz. the charter of cities of the second class, and which original sections of the charter of such cities vested in commissioners control of the police and fire departments. Acts such as this are valid. It was so held in Ader v. City of Newport, 6 S. W. 577, 9 Ky. Law Rep. 748, where an act to create a new board of fire and police districts in Campbell county and to provide for the government thereof was held not to be in conflict with the constitutional provisions. The provision construed in that case is found in section 37, art. 2, of the Constitution of 1850, being the same as the first part of section 51 of the present Constitution.

The grounds upon which it is sought to declare the act unconstitutional being insufficient for that purpose, the judgment appealed from must be and is affirmed.

(192 Ky. 1)

ADDINGTON v. COMMONWEALTH. (Court of Appeals of Kentucky. June 10, 1921.)

1. Criminal law 18-State cannot punish 'for offenses committed without its borders.

Though defendant who lived near the Virginia border aided in the operation of a still in that state, he is not guilty of a violation of Acts 1918, c. 168, denouncing the unlawful operation or assisting in the operation of a still.

Appeal from Circuit Court, Letcher County. J. H. Addington was convicted under Acts of 1918 of unlawfully owning and operating a still, etc., and he appeals. Reversed, with directions to grant a new trial.

D. D. Fields & Day, of Whitesburg, for appellant.

Chas. I. Dawson, Atty. Gen., and R. Monroe Fields, of Whitesburg, for the Commonwealth.

TURNER, C. Appellant was indicted by the grand jury of Letcher County under the provisions of section 1, c. 168, Acts of 1918, and charged with unlawfully owning, having in his possession, and operating, aiding, assisting, abetting, and encouraging others in the operation of a moonshine still and of harboring other persons while so operating the same.

On his trial he was found guilty and sentenced to 30 days in jail and to pay a $200 fine, and the trial court having refused him a new trial, he has appealed.

The evidence showed without contradiction that appellant lived in Letcher county, Ky., near the Virginia line, and that a short distance across the state line in the state of Virginia two stills very near together were operated during the summer of 1920; that appellant was either the owner of or at least had assisted in the operation of one of those stills, but there is no evidence that the still so owned or operated by him in Virginia had ever been in the state of Kentucky or owned or operated by him in the state of Kentucky. There is evidence, however, from which it may be inferred that certain materials were taken from the Kentucky side to the still in Virginia and there used in the operation of the still; and there is evidence that one or more persons lived at or were harbored at the home of appellant on the Kentucky side while they were engaged in the operation of these stills in Virginia.

On the trial appellant's counsel objected to all of the evidence bearing upon the operation of the still in the state of Virginia, but their objections were overruled. They likewise entered a motion in arrest of judgment after the return of the verdict and before the entry of a judgment thereon.

Acts 1918, c. 168, denouncing the unlawful [1] It would seem too plain to discuss the operation of stills, etc., is confined in its ap-question whether our statute was intended to

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(232 S.W.)

be created in personalty as well as realty.

apply to offenses committed outside the state | 3. Life estates 21-Remainders 12-May of Kentucky and beyond the jurisdiction of our courts, for manifestly it would be beyond the power of the Kentucky Legislature, even if it had so attempted, to punish persons for an offense committed in another sovereignty and wholly beyond the jurisdiction of

our courts.

[2] But the court in this case instructed the jury that although the actual operation of the still was in the state of Virginia, if the defendant in Letcher county aided or assisted or encouraged such operation, they might find him guilty.

Clearly the penal statutes of this state defining public offenses and prescribing penalties therefor cannot have reference to the commission of such offenses in foreign jurisdictions, and consequently when they define the offense of aiding or abetting the commission of a given offense they necessarily mean the aiding or abetting in the commission of that offense within the state of Kentucky.

The courts cannot read into statutes unreasonable things, and it would be beyond all reason to say that even if it had the power Legislature intended to prescribe a punishment for the aiding and abetting in this state of the commission of an offense in

our

another state.

The evidence was incompetent, and the motion in arrest of judgment should have been sustained.

The judgment is reversed, with directions to grant appellant a new trial, and for further proceedings consistent herewith.

(192 Ky. 122)

SHERLEY et al. v. SHERLEY et al. (Court of Appeals of Kentucky. June 21, 1921.)

I. Descent and distribution

17-Remainders 14-Wills 7-Vested remainder may be sold or devised.

A vested remainder is an estate susceptible of sale and transfer of the title and will pass by sale, devise, or inheritance if no defeasance is provided for, or if a defeasance is provided for, but the condition does not happen which I will create the defeasance.

2. Conversion 19(2)-Will held to convert remainder interests into personalty.

A will devising land to the testator's wife for life and directing that upon her death it should be sold and the proceeds divided between the testator's three sons converted the remainder interests into personalty as of the death of the testator so far as necessary for the purpose of carrying out the provisions of the will, and the property would be treated as personalty, and the bequests to the sons as legacies in money.

A life estate or estate for a term of years to one and an estate in remainder to another may be created in personal as well as in real property, and such estates in personal property are governed in the main by the same general principles as estates in realty.

4. Wills 617-Immaterial that life estate is realty and remainder converted into personal property.

Under a will giving real estate to the testator's wife for life and directing that upon her death it should be sold and the proceeds dividlife estate remains real estate while the reed between the testator's sons, the fact that the mainder interests are converted into personalty presents no obstacle to the existence of the life estate with remainder over to another; the difference in the legal character not being a difference of substance, but one of mere fiction.

5. Wills 634(1)-When remainder is "vested" stated.

A remainder interest in property is vested when there is a person in being who would have an immediate right to its enjoyment in possession if the precedent estate should determine, it being the present capacity of taking become vacant, and not the certainty that the effect in possesion if the possession were to possession will become vacant before the estate limited in remainder determines, that distinguishes vested and contingent remainders.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Vested Remainder.]

6. Wills 634(15)-Postponement of period of enjoyment does not prevent vesting.

That the period of enjoyment is deferred to a future time does not prevent a remainder from vesting if there exists a designated person who has the right to immediately enter into the possession if the intervening estate should terminate.

7. Wills 634 (6) - Remainders held vested; "upon the death of my wife."

Under a will giving property to the testator's wife for life and directing that "upon the death of my wife" the property should be sold and the proceeds equally divided between the testator's sons, designated by name, where the remaindermen were not incapacitated from entering into the enjoyment of the estate in remainder if the life estate had terminated, and no disposition was provided for the remainder. interests in the event of a failure of the right of the sons, the remainders were vested, as the quoted expression was equivalent to "when my wife dies" or "at the death of my wife," especially in view of the rules that a construction is favored which causes an estate to vest, and that it will be presumed that the testator intended to dispose of all of his estate by his

will.

8. Wills

634 (1)-Vesting of remainders de

pends on intention.

When a remainder interest created by a will vests depends upon the intention of the testa

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