Volume 196 — Kentucky Reports

<p>Appeal from McCreary Circuit Court.</p>

<p>Appeal from 'Caldwell Circuit Court.</p>

<p>Appeal from Perry Circuit Court.</p>

<p>Appeal from Knott Circuit Court.</p>

<p>1. Pleading — Pleading Without Proof. — It is a fundamental rule of practice 'that pleading without proof or proof without pleading will not sustain a cause of action or defense, since to do so there must be both pleading and proof to sustain it. Plaintiff alleged as a basis for his relief certain false and fraudulent representations by defendant by which he was deceived into executing a deed which he sought to cancel. The falsity of the representations relied on was denied, which cast the burden on plaintiff to sustain it by proof and he introduced none upon that issue: Held, that his petition should be dismissed, and it was error to grant him any relief in the absence of such proof.</p> <p>2. Vendor and Purchaser — (implied Promise. — There can be no implied promise upon the part of the vendee to pay the reasonable market value of the land conveyed in the absence of an express promise to do so when the vendor executed the deed 'at the instance of another who was the remote warrantor of the vendee and to whom the vendor looked for, and from whom he expected payment.</p>

<p>1. Searches and iSeizures — Evidence Under Invalid Warrant — Intoxicating Liquors. — 'Evidence .procured under an invalid search warrant, when objected to, cannot be admitted to prove the guilt o£ ■the one against whom it is sought to be used.</p> <p>2. 'Searches .and Seizures — .Search Warrant — Evidence.—A search warrant, with the affidavits on which it is based, offered in evidence, is admissible solely for 'the purpose of determining whether 'the evidence procured in executing the warrant is competent.</p> <p>3. 'Searches and Seizures — Motion to Quash Warrant — Evidence.— A motion to quash a search warrant that has been executed does not raise the question of the competency of the evidence procured in executing it. If one desires to avail himself of the incompetency of evidence so procured, he must make objection to it at the time it is offered, .and if no objection is made at that time, it will be received and considered as competent.</p> <p>4. Searches and Seizures — Invalid Warrant — Evidence.—Evidence procured under an invalid search warrant, admitted over the objection of the accused, while incompetent, is held not to have been prejudicial in this case, in view of the fact that other evidence of substantially the same facts was .previously 'admitted without objection.</p>

<p>Appeals from. McCracken Circuit Court.</p>

<p>1. (Banks and Banking — Giving Check Without Funds. — A. single act may violate both section's 1189 and 1213a oí Kentucky Statutes, tout the latter section is 'aimed at a wholly different offense from that denounced by the former. Section 1213a, Kentucky Statutes, is primarily directed against the giving of what is known as “‘cold checks,” whereas section 1189 was intended to apply to the forging, altering or counterfeiting of checks, drafts, -bills, notes or certificates of deposit.</p> <p>2. Forgery — Evidence.—Evidence in this case examined *and held to •support the judgment of conviction, under section 1189, Kentucky 'Statutes, since it was shown that accused tendered a check in payment for goods purchased and in exchange for money, knowing it to be forged.</p>

<p>Appeal from Bell Circuit Court.</p>

<p>Agriculture — County Farm Bureau — Organization of Corporation. —Section 42d, Kentucky Statutes, provides for the incorporation in each county of the state of a county farm bureau for the purpose of advancing and improving “the science and art of agriculture, home economics, horticulture and animal industry” in the .state, and subsection 11 thereof provides that when such corporation has been organized and its secretary and treasurer have certified to the fiscal court that it has -one hundred members and not less than $500.00 in the possession of the treasurer, the fiscal court “shall appropriate to such organization” a -sum double the fund 'in the hands nf its treasurer, not to exceed certain fixed limits. Held, that this provision is not violative of section 3, 171 or 181 of the state ‘Constitution.</p>

<p>Counties — Issue of Bonds for Roads — Construction of Order.— Where the fiscal court provided by order that, in co-operation with •the state and Federal governments, it would construct named roads out of rock .asphalt “provided the county is able to raise the $192,000.00 by bond issue” necessary therefor; and where authority to issue bonds for that amount was voted at an election called five days after the order of the fiscal court was entered, the issuance of such bonds for general road purposes or for improvement of the named roads by the county alone out of macadam, was unauthorized, 'even though the order calling the election, couched in the language of the statute, indicated that the bonds were to be used for general road purposes.</p>

<p>1. Wills — Construction—Intention of Testator. — The cardinal rule for interpreting a will is to ascertain the intention of the testator from the language he employs in the 'entire testamentary paper and.to construe it accordingly if to do so would not contravene any positive rule of law or of public .policy; and it is the tendency of courts to so construe wills at .the expense of formerly administered technical rules of law. Therefore, Where an absolute ■estate is given in one clause and later language is employed clearly indicating that it was the intention of 'the testator to limit the estate .so given the limitation will be upheld, but i.f the limitation only purports to apply -to the remaining .portion of the property which the absolute taker might leave or not dispose of, he having the power to do .so then the limitation will not apply because it is repugnant to the absolute gift.</p> <p>2. Wills- — -Execution of Powers. — A will sufficient ¡in law to pass title to the testa-tor’s individual property is s-ufficent, under the -provisions of section 4845 o.f the .statutes, to transfer any property which he has the right to devise as the .donee of a power, and a. will so .executed, under the ¡provisions of the section, will be 'deemed as .an execution of the power unless a contrary intention shall appear by the will of the donee.</p> <p>3. Wills — Residuary 'Clause. — A residuary clause in a will is sufficient to transfer and .pass title to all of the property ¡of the testator, not specifically devised, to the residuary legatee or devisee, and it is also -sufficient to transfer property -over which the testator, as the donee of a power, is authorized to appoint toy his will, unless a contrary interpretation be expressed therein.</p> <p>4. Willis — 'Revocation of Appointment — Intention.—A residuary clause in the will -of the donee ¡of a power -to appoint by will may not be sufficient to execute the power although no intention appears ■in the will not to do .so in cases where the donor has already appointed the property but given to the donee the ¡power to revoke it and reappoint the property. In that case 'there should be an express revocation by the donee of the prior appointment, or it -should apear from t-he executing paper that it was his intention to revoke the prior appointment, and a residuary clause in a will unaccompanied with -other expressions therein -from which the intention to revoke may be implied will not have the effect of a revocation.</p>

<p>1. Assault and Battery — Evidence.—Upon itbe trial of one charged with assault and battery, evidence by the prosecuting witness that a short time before the assault he, witness, had been arrested and taken .to court and there interrogated as to where he had gotten liquor, and had answered that he got it at “Lou Urban’s Place,” and 'that after his arrest he had missed some money, was competent evidence to show a motive for the assault hy a man named -Lou Urban who had theretofore run the place known as “Lera Urban’s Place” although he had some four months before ■ sold the place.</p> <p>2. Assault and Battery — New Trial. — Evidence examined and held to show such an aggravated and unprovoked assault as that a fine of one thousand dollars and six months in jail will not he held to have been such cruel and excessive ¡punishment as would justify the court in granting ¡a new trial.</p> <p>3. Assault ¡and Battery — Instructions.—Under an indictment charging one with forcibly and violently .striking, .beating and bruising another it is not necessary in the instructions to use either the words “maliciously” or “willfully.”</p> <p>4. Assault and Battery — 'Instructions.—Where the indictment charges the assault was made with a blackjack or other weapon .to the grand jury unknown, and the evidence shows that the assault was made with defendant’s fists, but at .the time he had on a ring which caused cuts and bruises on the face of the ¡person assaulted, the court did not err in instructing the jury .that defendant was guilty if he assaulted or beat Deal with 'his hands “or anything else.”</p>

<p>1. Criminal Law — 'Vacation of ¡Bench. — One accused of crime is entitled to have his case tried ¡by a judge who had no .interest >in the subject matter out of which the charge arose; and .on mo- . tion made .by the accused for the presiding judge to vacate the .bench, .supported by affidavits .showing that the judge was interested in the subject matter that was the cause of the difficulty out of which the offense grew, it is the duty of the judge to vacate the bench, and his refusal to do so is error.</p> <p>2. Criminal Law — Change of Venue. — Where on the calling for trial of a prosecution for murder the Commonwealth attorney files a petition for a change of venue, and in support thereof files the affidavits of -citizens o-f the county, showing that it’ is no-t possible ■for the Commonwealth or the accus-ed to obtain a fair trial within the county, it is error to refuse to sustain the motion for a change of venue.</p> <p>3. Criminal Law — -Change o-f Venue.- — Although -the trial court erred in refusing t to grant a change of venue on motion of the Commonwealth attorney, and further erred in refusing to vacate the bench on .motion of the accused, a subsequent order granting a change of venue on the supplemental -petition -of the 'Commonwealth .attorney was not void, -but w-as only erroneous; -and inasmuch as -counsel for accused -cooperated with the Commonwealth in its effort to effect a change -of venue -to the -extent of taking affidavits tha-t were filed with the petition and motion for a -change, and -did no-t -object or except -to the filing of -the -supplemental petition or to the order -changing the cases -to another county, on reversal -of the judgment the -cases will not -be returned -to the original county for further proceedings, but will be remanded for another trial to the county to which they were transferred.</p> <p>4. Criminal Law — Change of Venue. — An order overruling a motion for a -change of venue is interlocutory and subject to -the control of the -court at a -subsequent -term, and the court has -the power, at a -subsequent term, to set aside its order m-ade at a -former term -overruling the -motion and to grant the change; and -the order granting the change is not void, even though made by a judge who was disqualified to try the case.</p> <p>5. Criminal Law — 'Conspiracy.—Slight evidence 'of -a conspiracy is sufficient to take a -case -to the jury on the question of the existence of the conspiracy. The evidence examined in this case -and held to justify the overruling -of -the -motion of -defendants -for a peremptory instruction and to authorize the -giving of -an instruction conformable to the -conspiracy -charged in ithe indictment.</p> <p>§. -Qri-minal Law — (Submission to Jury. — On the -facts and circumstances developed -on the -trial o-f this case it is held -that there was sufficient evidence of the -commission o-f the offenses -charged as to -ail o-f the defendants to -warrant the -submission of the -case to the jury.</p> <p>7. Homicide — Self-Defense—Instructions. —If on the trial of one -charged w-i-th the killing -o-f another the evidence tends -to raise the issue of self-defense, although -the defendant -denies the killing, an instruction based on the theory of self-defense is proper and it is error to refuse to instruct the jury on that theory.</p> <p>8. Homicide — -Self-Defense—Instructions.—¡Even though the -defendant denies the -shooting of the deceased -and all ihi-s evidence .tends -to support that -theory of the cas-e, still, .if there is any evidence ■tending 'to show that he shot the deceased in seif-defense -or -in the defense of -those acting in -concert w-ith -the defendant, it is error to refuse to instruct the jury on self-defense or to refuse to give an- instruction justifying the shooting if the jury believe it to have been done in the defense of a brother or one acting in concert . with the accused.</p> <p>9. Criminal Law — Conspiracy—Evidence.—Where the defendants are charged with a conspiracy to commit murder, and the defense is-that another crowd had formed a conspiracy to prevent the holding of an election and the defendants and their friends merely acted on the defensive in the shooting that resulted in the death of 'deceased, any evidence tending .to establish the defense or any incident from which'its verity can be inferred, whether it relate -to' incidents preceding the election or immediately following it and before the -dispersal of the .crowd engaged in the shooting in which decedent lost his life, is competent -to be considered by the jury.</p>

<p>1. Reformation of Instruments — Mistake or Fraud. — A party to a contract is not entitled to a reformation of tbe instrument unless tke contract, through mutual mistake or fraud, fails to express the agreement made between the .parties; and relief will only be granted upon the establishment of the mistake or fraud by evidence of the most clear and convincing character.</p> <p>2. Corporations — Authority of Agent to Act. — A corporation can only act through its officers and agents, and before such corporation can he found by a contract made by its officer or agents it must have empowered or authorized its officer or agent to act for it in making such contract.</p> <p>3. Appeal and Error — Finding of Chancellor. — The finding of fact by a chancellor "Will not he disturbed by this court unless it be against the weight of the evidence.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Christian Circuit Court.</p>

<p>1. Infants — Action to .Sell Eeal Property of Infants — Process.—In ai. action to sell real property of infants jointly owned, the .summons should be executed by delivering a true copy thereof to each of the •infants over the age o.f fourteen years, and a copy to the father, if living; or if no father,, to the guardian, and if no guardian, to the mother of such infants as are under the age of fourteen years.</p> <p>2. Infants — Process.—A.judgment against an infant under fourteen years upon whom no process was .served, as directed by Civil Oode, section 52, is void.</p> <p>3. Infants — Process.—Where the summons is properly .served upon ■part of .the infants 'but not upon the others, the judgment entered . 'directing a sale of the land will ’be valid as to those upon whom process was properly executed, and void as to those upon whom no process was served.</p>

<p>1. Bills and Notes — Dishonor—Notice.-—Exc-eipt -a-s -otherwise provided in -the -statutes, when -a -negotiable instrument has ibeen dishonored ■by nonacceptance or nonpayment, notice of -the dishonor must be given to an indorser or otherwise he will be discharged from liability.</p> <p>2. Bills and -Notes — ¡Indorsers-—Dishonor.—'Held in this case that appellant was such an indorser under section 3720-b-89 -of Kentucky ■Statutes as entitled him to notice of nona-coe-ptance or dishonor of the notes sued on.</p>

<p>Appeal from Harlan Circuit Court.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Bell Circuit Court.</p>