Volume 198 — Kentucky Reports

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

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

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

<p>1. Railroads — Company Not Reliable for Flooding During Federal Control. — The railroad company is not liable for the flooding of lands during the period of federal control, where the evidence showed that the flood resulted, not from the original construction of the railroad by the company, but from permitting the culverts under the embankment to become partially obstructed, since the company had no right during the 'period of federal control to enter on the property to remove the obstructions.</p> <p>2. Dismissal and Nonsuit — What Constitutes “Final Submission to Jury.” — Within Civil Code, section 371, providing-that an action may be dismissed without prejudice to a future action by the plaintiff before final submission of the case to the jury, the final submission is not made until all questions of law have been disposed of by the court, the instructions and papers pertaining to the case actually delivered to the jury, and the jury authorized without further interposition by the court to proceed to a judicial examination of the issue submitted to them, so that it was error, in an action in which the defendant had filed no counterclaim, to deny plaintiff’s motion to dismiss the case without prejudice, made after the evidence had been concluded, and while the court had under consideration defendant’s motion for a directed verdict.</p>

<p>1. Criminal Law — Jury is Final Arbiter of Credibility of Witnesses.— The jury is the sole and final arbiter of the credibility of the witnesses and of tbe weight of the evidence, even though the testimony of the prosecuting witnesses upon which the conviction was based appears to the Court of Appeals to be unreasonable.</p> <p>2. Witnesses — -Notary Public May Administer Oath to Witnesses Under Direction of Court.- — -Under Kentucky Statutes, sections 380, 395, 3721, 3754, authorizing notaries public to administer the oath to witnesses about to give depositions and in other matters, a notary public may administer the oath to the witnesses in a criminal prosecution if he does so in the presence of the court and under his direction; such authority not being denied but supported by Civil Code, sections 549, 562, and 671.</p> <p>3. Witnesses — Oath Need Not be Administered by Legally Appointed Officer of the Court. — The power to administer oaths to witnesses in the trial of cases need not be expressly given by statute, but is implied in the jurisdiction to try cases and receive the testimony of witnesses, and the oath may be administered by the judge himself or by any one under his direction and in his presence in open court; it being unnecessary that the person who administers it should be a legally appointed officer of the court.</p>

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

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

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

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

<p>1. States — Appropriation is Setting Apart of Particular Sum for Specific Purpose. — An appropriation by the Legislature is the setting apart of a particular sum of money for a specific purpose.</p> <p>2. Colleges and Universities — Statute Held Not to Authroize Payment of Debts Prom Appropriation for Maintenance. — Act 1922, c. 100, appropriating $6,000.00 for improvements to the buildings and grounds of the West Kentucky Industrial College and $15,000.00 ■ annually for support and maintenance, does not authorize the use of the sums appropriated for the payment of debts contracted for past support and maintenance, especially as Acts 1918, c. 18, whereby the legislature assumed control of such college, shows intention not to incur any obligation in excess of the amounts thereby appropriated.</p>

<p>1. Criminal Law — Competency of Evidence Not Objected to or Excepted to Cannot be Reviewed. — The admission of evidence as to trailing by a bloodhound was not reversible error, even if the evidence was incompetent, where no objection was made at the trial and no exception saved to its admission.</p> <p>2. Arson — Evidence Held Insufficient to Sustain a Conviction. — In a prosecution for wrongfully burning a barn, circumstantial evidence as to trailing by a bloodhound to defendant’s premises, where a tenant who confessed he had visited the barn also lived, and as to tracks in two fields across which the bloodhound went hut which were not adjacent to either the barn or defendant’s premises and which were not connected with defendant except by testimony of •witnesses that one set of tracks might have been made By him, held insufficient to sustain a conviction.</p> <p>3. Arson — Evidence Held Incompetent to Show Motive. — In a prosecution for wrongfully burning a barn, evidence that a month or more before the barn was burned accused, while talking about a raid previously made in the neighborhood, stated that if the party who raided the neighbor were to treat him that way he would get even with them, was incompetent to show motive, even though thereafter the premises of defendant were raided and prosecuting witness was delegated by the officer to guard a still taken therefrom; it appearing that defendant thanked prosecuting witness for advice given a member of his family on that occasion and remained on friendly terms with him.</p> <p>4. Criminal Law — Evidence as to Nervousness of Accused When Bloodhound was Brought Held Incompetent. — In a prosecution for wrongfully burning a barn, testimony by a witness that, when the bloodhound was brought to town to track the guilty persons, accused displayed nervousness, was incompetent; it appearing that accused at the time had accompanied his wife to town to have some dental work done and his nervousness might have been attributed to that.</p> <p>5. Criminal Law — Evidence of Conduct of Accused When Arrested Held Incompetent. — Evidence that accused when arrested was so nervous that he exclaimed, “Ain’t this hell?” is incompetent to show guilt, since an arrest for crime would naturally make a person nervous, especially if he knew himself to be innocent.</p> <p>6. Criminal Law — Circumstantial Evidence Insufficient Unless it Excludes Every Reasonable Hypothesis of Innocence. — A conviction may be had upon circumstantial evidence alone, when it is of such character as to exclude every reasonable hypothesis of innocence.</p>

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

<p>1. Taxation. — Notice Held not to be that Required by Statute, of Final Action Increasing Assessment, to be Filed on Appeal. — A paper, notifying a taxpayer that the board of supervisors had raised his assessment and would reconvene at a stated date to hear any proof he might have to offer against such raise, was merely a notice to him of the contemplated action of the board, and not the certified copy of the final action taken by the board, which he must file under Ky. Stats., section 4128, to appeal therefrom.</p> <p>2. Taxation — Final Action not Shown by Indorsement on Notice Cannot be Proved by Parol. — Where a notice of raise of assessment contained a phrase therein “decreased by vote,” without, by its terms, indicating that the phrase was a certification of the hoard’s final action upon the hearing granted in pursuance of the notice, that jurisdictional fact could not he established by oral testimony, so as to sustain the taxpayer’s appeal based on the filing of the notice in the trial court.</p>

<p>1. Taxation — Statute Requiring Sheriff to Pay Over Collections Every 60 Days Does not Mean Each Two Months. — Ky. Stats., section 932, making it the duty of the sheriff to pay over taxes collected by him on the 1st day of May and every 60 days thereafter, does not mean he shall pay over every two calendar months, and cannot be given that meaning because section 4137 requires him to balance his books on the 1st of each month, so that he is required to pay over the funds on the 27th of December, and not on the 1st of January.</p> <p>2. Taxation — Requirement that Sheriff Pay Collections Over Every 60 Days Does not Prevent Requirement He Pay Of tener. — Ky. Stats., section 932, making it the duty of the sheriff to pay over taxes collected by him on May 1st, and every 60 days thereafter, does not, in view of section 1884, which was enacted at the same session, and which requires him to give bond to pay over in due time as directed by tbe fiscal court, deprive tbe fiscal court oí authority to require bim to pay over money collected by bim oftener tban every 60 days if tbe money is needed by tbe county.</p> <p>3. Statutes — Rule as to Express Mention and Implied Exclusion Does not Apply to Defeat Intention. — Tbe familiar and general rule of statutory construction that tbe mention of one thing implies tbe exclusion of another is not of universal application, and is to be applied- only as an aid in arriving at intention, and not to defeat it.</p>

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

<p>1. Criminal Law — Exception to Overruling of Motion to Quash. Service and Presentation in Motion for New Trial are Necessary for Review. — Alleged error in overruling defendant’s motion to quash the service of process upon him because he was in the county in attendance upon court when he was served cannot be reviewed where no exception was taken to the action of the court, nor unless it was presented to the trial court in the motion for new trial, in view of Civil Code of Practice, section 334, and Criminal Code of Practice, section 282.</p> <p>2. Criminal Law — Evidence, of Another Sale of Liquor to Another Person at Same Time is Incompetent.- — In a prosecution for an unlawful sale of intoxicating liquors, evidence that at the same time and place defendant made another sale to another person is incompetent.</p> <p>3. Criminal Law — Objection and Exception are Necessary to Present Admission of Evidence for Review. — The error in the admission of testimony is treated as waived where accused made no exceptions or objections to the introduction of the testimony.</p>

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

<p>Appeal from Kenton Circuit Court.</p> <p>(Common Law and Equity Division).</p>

<p>1. Deeds — Regarded as Expressing Full Contract in Absence of Mistake. — When a deed is executed and delivered, it must be regarded as expressing the full contract between the parties, unless it be shown that by mutual mistake it fails to do so, and all former agreements are presumed to be merged in the deed.</p> <p>2. Reformation of Instruments — Evidence of Mutual Mistake Must be Clear. — He who seeks the reformation of a deed on the ground that, by mutual mistake of the parties, it does not express the true agreement must sustain his claim by evidence that is clear and convincing; that is, it must logically impel the belief there was a mutual mistake, and clearly show what the understanding and intention of the parties was.</p> <p>' 3. Reformation of Instruments — Statement of Consideration in Contract and Deed Held to Show Mistake in Deed. — Where a contract for the sale of land recited'the total consideration written out in words, and specified the manner in which such consideration should he paid, while the deed did not state the total consideration, hut did provide for the execution of the notes specified in the contract, with the exception of a modification made necessary hy the assumption hy the grantor of an outstanding note against the property amounting to $1,000.00 less than each of the notes which the con- , tract required him to give, and the amount of the notes as stated in the deed, when added to the cash payments, was $1,000.00 less than the total consideration stated in the contract, the circumstances are sufficient to show that the mistake was in the deed, and to entitle the grantor to have the deed reformed so as to require payment of the additional $1,000.00.</p>