necessary.

For the reasons indicated, the judgment is reversed, and cause remanded for a new trial, and other proceedings consistent with the opinion.

(192 Ky. 215)

ALDRIDGE v. COMMONWEALTH. (Court of Appeals of Kentucky. June 24, 1921.)

1. Statutes 118(6)-Amendment of statute relating to continuances in criminal cases held to express subject in its title; "amendment;" "repeal."

Acts 1920, c. 57, entitled "An act to amend and re-enact section 189 of the Code of Practice in criminal cases relating to continuances," held not invalid, under Const. § 51, as not expressing its subject in its title, although the amendment consisted of a repeal of section 2 of Acts 1885-86, p. 112, so as to leave only section 1 thereof as the whole of said section 189; for "amendment" is defined as "to alter by some addition, taking away, or modification"; and although, in its legal phraseology, "amendment" is not synonymous with "repeal," it does not follow an "amendment" of a statute may not be accomplished by repeals of some of its parts, such change or alteration made by the amendment being direct, and not consequential, as in the case of a "repeal," which is defined as the abrogation or destruction of a law by a legislative act, while an "amendment" is an alteration or change of something proposed in a bill or established as law.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, AmendAmendment; Repeal.] 2. Constitutional law

48- Statutes construed in favor of their constitutionality. Whenever an act of the Legislature can be so construed and applied as to avoid conflict with the Constitution, and give it the force of a law, such construction will be adopted by the

courts.

3. Robbery 24(1)-Evidence held to support conviction.

In prosecution for robbery, evidence held to support conviction.

4. Indictment and information 180-Variance in name of person from whom whisky taken held not fatal.

In prosecution for robbery of whisky, the fact that the whisky was referred to in the evidence as the property of H. H., whereas the indictment referred to it as the property of H. "S." H., was not a fatal or material variance, especially where the indictment identified the whisky as being in the custody of another named person.

Appeal from Circuit Court, Daviess County. Jack Aldridge was convicted of robbery, and appeals. Affirmed.

Chas. I. Dawson, Atty. Gen., C. E. Smith, of Hartford, and H. A. Birkhead, of Owensboro, for the Commonwealth.

QUIN, J. Appellant was indicted for the crime of robbery, and at the indicting term was tried, found guilty, and sentenced to a 10-year term in the penitentiary. Dissatisfied with this judgment, he has appealed.

[1] The first and chief point urged for reversal is directed to the effect of a motion for a continuance on account of the absence of certain witnesses. According to the affidavit, these witnesses, had they been present, would have testified to facts showing appellant was not guilty of the offense charged. The commonwealth objected to the motion, but agreed to admit the evidence in so far as competent and relevant, whereupon the court overruled the motion and proceeded to try the case.

Section 189 (then 190) of the Criminal Code, as originally adopted in 1854, reads as follows:

"The provisions of the Code of Practice in civil actions, in regard to postponements of the trial of actions, shall apply to the postponement of prosecutions, by the defendant.”

This provision was carried forward in subsequent Codes, with certain modifications, so that at the beginning of 1886 said section read as follows:

"The provisions of the Code of Practice in civil actions, in regard to postponements of the trial of actions, shall apply to the postponement of prosecutions, on application of the defendant, except that, when the ground of application for a continuance is the absence of a material witness, and the defendant makes affidavit as to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the commonwealth admit upon the trial that the facts are true."

At its 1886 session (Acts 1885-86, p. 112) the General Assembly passed an act entitled "An act to regulate continuances in criminal and penal cases." In the first section of said act it is provided that the attorney for the commonwealth shall not be compelled, in order to prevent a continuance, to admit the truth of the matter set forth in the affidavit for a continuance, but only that such absent witness would, if present, testify as alleged in the affidavit, in which event accused could read the affidavit as a deposition, subject to exception for irrelevancy or incompetency. Then, too, the court is given the discretionary power, if the needs of justice require it, to grant a continuance unless the commonwealth's attorney will admit the truth of the matter alleged.

In section 2 of the act it is provided that

89:

"It may be proper, in giving a construction to a statute, to look to the effects and consequences, when its provisions are ambiguous, or the legislative intention is doubtful. But, when the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative, and not judicial action."

The court should construe statutes in accordance with the legislative intent, since it is always to be presumed the Legislature designed the statute to take effect, and not be a nullity. Cooley's Constitutional Limitations, p. 255.

[2] Whenever an act of the Legislature can be so construed and applied as to avoid conflict with the Constitution and give it the force of a law, such construction will be adopted by the courts. Newland v. March, 19 Ill. 376. Or, as said in Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606:

"It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt."

In Board of Penitentiary Commissioners v. Spencer, etc., 159 Ky. 255, 166 S. W. 1017, in setting forth the various ways in which section 51 of the Constitution may be complied with, the court says:

"(a) That it is not necessary when the body of the new act repeals or has the effect of repealing all or part of an existing act, to republish or set forth the parts repealed, although the title of the repealing act may purport to be an amendment to the existing act. "(b) That when it is proposed to revise or amend one or more sections of the Kentucky Statutes, or an act, the body of the new act should contain the section or sections as they will read when revised or amended, if it is proposed to re-enact or leave in force any part of the section or sections that are amended or revised. If, however, it is intended to repeal one or more sections, then it is not necessary to set forth in the body of the act the section or sections repealed."

We are satisfied the 1920 act does not contravene any of the provisions of section 51 of the Constitution.

[3] In the next place it is said the evidence is not sufficient to support the conviction. We do not deem it necessary to set forth the evidence in detail. Accused was positively identified by Tilden Jones, who had the whisky under his control, as one of the men who appeared at the house and assisted in the asportation of the 12 cases of whisky; while one witness says he did not look inside the cases, others repeatedly re

whisky. For instance, we find such expressions as, "I set the whisky on top;" "twelve cases of quarts;" "Jack and Bob took away six cases of whisky;" "the whisky was divided by each one getting three cases;" and so throughout the entire testimony the witnesses refer to the contents of the cases as being whisky. We do not think there can be any doubt that the evidence amply supports the verdict.

[4] The fact that the whisky is referred to in the evidence as the property of Hugh Herr, whereas the indictment refers to it as the property of Hugh S. Herr, was not a fatal or material variance. See Lowery v. Commonwealth, 191 Ky. 657, 231 S. W. 234. Besides, the indictment identifies the whisky as "same being in the custody of Tilden Jones." Finding no error in the judgment, same is accordingly affirmed.

(192 Ky. 193)

CARTER et al. v. FLEGLE et al. (Court of Appeals of Kentucky. June 24, 1921.)

1. Jury 13(3)-Trial 370(2), 374 (2)When a party is entitled to have issue of fact tried by jury stated.

A party to what is purely an equitable action is not entitled as a matter of right to have an issue of fact tried by a jury, and the submission thereof is within the sound discretion of the chancellor, and where an issue is submitted, the verdict, being only advisory, may be disregarded by the chancellor, but where the decision of an equitable action depends on the finding of fact, a party may by timely motion require an issue out of chancery.

2. Jury 13(1)-Common-law issue where /determinative of the rights of the parties is triable by jury.

Where the common-law issue is the chief one in the case, and its determination is conclusive of the rights of the parties, the chancellor cannot refuse a trial of such issue by a jury.

3. Jury 14(1)-In discovery action parties not entitled to trial of issue of fact by jury.

In an equitable action in the nature of a discovery by heirs of surety against principal, who had defaulted, refusal to submit issue of fact to a jury held not error; the action being a purely equitable one.

4. Discovery 33-Refusal to require defendants to appear for oral examination not error.

In equitable action in the nature of a discovery by surety's heirs against principal who had defaulted and principal's wife, claimed to be holding principal's property to defeat principal's creditors, the court did not err in refusal to compel defendants to come into court and submit to an oral examination touching

The third and chief insistence of the appellants is that the facts do not warrant or support the decree of the chancellor, and this seems to be well founded.

The defendants C. E. and Jake Flegle claim no property subject to execution, but defendant M. L. Flegle, wife of C. E. Flegle, claims to own a home in Clinton, an interest in a farm near by, 20 shares of the stock of the Star Milling Company, an automobile, and other property sufficient to satisfy the execution which was returned, "No property found," all of which she has acquired since her husband failed in business at Arlington and the obligation sued on was contracted. She has never been in business. She inherited nothing. When the defendants moved from Arlington, the scene of their financial disaster, to Clinton, in 1912, she says she had no property whatever except a right to the surrender value of a policy of life insurance worth about $190. She was asked: "Q. Did you have any property? A. Well I had a little insurance. Q. Do you remember how much it was? A. Not exactly, but somewhere about $200 or $190 some odd."

[5] The policy of insurance is not in the record, but Mrs. Flegle testifies that it was one on her life, and that her husband was the beneficiary, and, if so, she was not entitled to the cash surrender value thereof. But the evidence on this point is so scanty and indefinite that the court is unable to determine with absolute certainty whether her claim to this $190 of insurance money is well founded or not. She admits that she paid no part of the premiums, and it appears in an indefinite way that the premiums were actually paid from funds belonging to the defunct firm of Flegle Bros., and, if so, the creditors of that firm have a right to appropriate money arising from the policy of insurance to the extent of sums so paid to the extinguishment of the firm's indebtedness, if the premiums were paid at a time when the firm was insolvent.

In attempting to account for her ownership of the attached property, Mrs. Flegle also claims that about the time she and her husband moved from Arlington to Clinton her brother gave her a span of mules which she sold for $375, which sum, with the insurance money and other funds, she invested in the Ringo Mill.

Mrs. Flegle also says that in purchasing the stock in the Star Milling Company, which has earned dividends and paid for all the other property which she now claims, she borrowed $200 from Mrs. Settle, a relative. This Mrs. Settle denies. She says she did not loan Mrs. Flegle $200 or any sum. This fact, taken with the further evidence that C. E. Flegle had without the knowledge or consent of Mrs. Settle deposited money in bank to her credit and later withdrawn it by signing the name of Mrs. Settle to a check without her knowledge, indicates that the alleged loan from Mrs. Settle was in fact the money of C. E. Flegle, manipulated through the bank in the name of Mrs. Settle. The facts surrounding the money received from the insurance policy are rather suspicious, but, giving the benefit of the doubt to Mrs. Flegle, she is entitled to that sum with interest at the lawful rate from the time it was paid by the insurance company to the present time, and this should be adjudged a lien on the attached property. But the money derived from the sale of the mules and the loan of $200 from Mrs. Settle are too obviously fraudulent to pass. Of the $853 which was paid on the $2,000 stock in the Star Milling Company, Mrs. Flegle furnished about $190 which came from the insurance. The balance of the $853 was furnished indirectly by the defendant C. E. Flegle. He also made the note of $600 in the purchase of the stock. In fact, it reasonably appears that C. E. Flegle adopted and used the name of his wife, M. L. Flegle, in the conduct of his business to avoid the payment of his creditors. C. E. Flegle was the head of the whole business, but operated under the name of his wife for fraudulent reasons. She had no income or means of earning money, but she acquired all the property. He had a fair monthly salary and was an active business man, but accumulated nothing in his own name, though he managed to gather property for his wife, who