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Holders v. Funding Board, 16 Lea, 46, 57 Am.
Rep. 211.

FRAZIER V. COMMONWEALTE. [12] What has been said with reference to the number of the bond and coupons ap-|(Court of Appeals of Kentucky, Dec, 20, 1918.) plies with equal force to the contention with 1. HOMICIDE Cw189 - SELF-DEFENSE — Evireference to the retracing of the name of DENCE-PREVIOUS DIFFICULTIES. the county clerk on the coupons, conceding In a homicide case, where defendant set up that such retracing sufficiently appeared upon self-defense, evidence as to who was the aggresinspection. Upon this point the clerk him- sor in a difficulty occurring months previous self, when examined as a witness, acknowl- to the killing is inadmissible. edged having signed the coupons at the be- 2. HOMICIDE 231, 232-MURDER-PREMEDIginning, but was unable to say that his name TATION AND MALICE-EVIDENCE, had been retraced. However, such retracing In a homicide case, evidence held sufficient is not placed by the law upon a par with for- to sustain finding that a killing was premedigery, since the person doing the retracing tated and malicious. is not attempting to give validity to a thing 3. CRIMINAL LAW Cm1150_REVIEW-CHANGE which never had any, but rather to preserve OF VENUE-DISCRETION OF COURT. that which did have validity.

Whether change of venue should be granted In 2 Corpus Juris, 1220, the text says: in a criminal case is a matter within the sound “To retrace words already written is not of it- thereon will not be reversed, unless it appears

discretion of the trial court, and its decision self sufficient to vary the legal effect of the in- that it abused its discretion. strument, as where pencil writing is retraced with ink, and constitutes no alteration."


OF VENUE-DENIAL. This text is supported by Reed v. Roark, Denial of motion for change of venue on 14 Tex. 329, 65 Am. Dec. 127; Dunn v. Clem- account of derogatory statements concerning ents, 52 N. C. 58; Tutwiler v. Burns, 160 Ala. accused, made in the presence of persons sum386, 49 South. 455. Besides, section 125 of moned from another county for jury service, our Negotiable Instruments Law, which is cannot be held prejudicial, where the record of

the trial does not show that any one serving on largely declarative of the common law upon the jury heard them. the subject, does not include the character of alterations here complained of as materi- 5. CRIMINAL LAW Ow122–CHANGE OF VENUE. al ones. We therefore conclude that defend

Where a motion for change of venue was ant's contention in these respects cannot be withdrawn after being overruled, a renewal of

the motion should have been treated as a new upheld. [13] Lastly, it is insisted that if the bond not more than one change of venue or applica

application, under Ky. St. § 1118, providing that sued on was discharged and canceled, or if tion therefor sball be allowed. never issued, but canceled, and afterwards fraudulently procured and the cancellation 6. HOMICIDE Www166(5)-EVIDENCE-MOTIVE. entirely erased, plaintiff is not a holder in Although the pendency and objects of acdue course, and the defense of payment and tions brought by a deceased against accused are nonissue ought to prevail, and some authori- show motive, the court should not permit the

competent as evidence in a homicide case, to ties are cited in support of this contention. pleadings in such actions to be read. But, in view of what has been said in a former part of this opinion, to decide that 7. HOMICIDE 338(4) – HARMLESS ERROR –

EVIDENCE. question now would be to pronounce the law upon a supposed and not an actual state of In a homicide case, it was not reversible erfacts, since we have determined that there ror to permit pleadings in a case by deceased

against accused for alienation of his wife's afis no evidence of the bond either having been fections to be read in evidence, where the court paid or canceled.

carefully admonished the jury that contents of The question attempted to be raised and ar- the pleadings could be considered only for the gued by counsel is one of such seriousness purpose of showing that accused had a motive and importance as that we do not feel in- for killing deceased. clined to determine it, in the absence of

8. HOMICIDE O 166(8)–EVIDENCE-MOTIVE. facts clearly and directly presenting it. For

In a homicide case, it was competent to show to do so now, under the condition of this rec- improper relations between accused and deceasord, would convert this part of the opinioned's wife, both before and after a divorce from from judicial utterance to dictum. We there the accused, on the question of motive. fore refrain from a discussion of this contention,

Appeal from Circuit Court, Letcher County. Upon the whole case we are convinced that

James H. Frazier was convicted of murder, the plaintiff was entitled to a directed verdict in its favor, and the judgment is revers

and he appeals. Affirmed. ed, for a new trial and for proceedings in ac- W. H. May, of Prestonburg, E. E. Hogg, of cordance herewith.

Booneville, J. M. Benton, of Winchester, A.

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F. Byrd, of Lexington, and Fields & Day, of, dence also conduced to prove that after the Whitesburg, for appellant.

happening of these events Banks brought an David Hays, of Whitesburg, Chas. H. Mor action in the Letcher circuit court seeking ris, Atty. Gen., Overton S. Hogan, Asst. the recovery of large damages against apAtty. Gen., and R. Monroe Fields, Common- pellant for the alienation of his wife's affecwealth's Atty., of Whitesburg, for the Com- tion, which was dismissed upon the producmonwealth.

tion in court by appellant of a writing so

directing, purporting to have been signed or SETTLE, C. J. The appellant, James H. authorized by Banks, but the execution of Frazier, was tried and convicted in the court which Banks thereafter denied, following below under an indictment charging him the denial with an action in equity to set with the murder of William Banks, and his aside, on the ground of fraud, the judgment punishment fixed by the verdict of the jury dismissing his suit for damages against apat confinement in the penitentiary for life. pellant. The evidence further tended to He was refused a new trial, and has ap- prove that Banks was in Whitesburg on the pealed.

day he was killed for the purpose of giving Before considering the grounds urged by his deposition in that case, of which appelhis counsel for a reversal of the judgment, lant, as defendant in the action, had receivit will be proper to briefly state the material ed due notice. facts of the homicide. Appellant shot and

The facts as to motive furnished by the killed Banks on the morning of November 9, foregoing evidence were in the main denied 1917, in Whitesburg. The shooting was done by appellant in testifying for himself, and with a "high-power” rifle owned by appel- additional evidence in his behalf, furnished lant and kept in his store. Immediately be- by his own testimony and that of other witfore the shooting, Banks came out of the nesses, conduced to show that Banks bore courthouse in front of the rear door of ap- him great ill will, and that, in addition to bepellant's store, and after pausing at the en- ing at all times offensive in his demeanor trance for a moment, with his hand resting toward appellant, he had threatened to kill on a cement post of the courthouse, walked him, and at one time shot and wounded him. across the street in a direction that would In telling of the killing appellant said that, have taken him away from the store. Appel- when Banks came out of the courthouse, he lant, who was standing in or near his rear paused with his hand on the cement post, store door, saw Banks come out of the court- looked for a moment in the direction of his house, and at once secured his gun, returned store door, and then turned and walked to the store door, and shot at Banks, who away with his back toward the store, wherewas then about 75 yards from him and walk- upon appellant procured the gun, which was ing with his back toward him. The ball from near at hand, and shot him. He did not say the rifle entered the back of Banks and pass-that, when standing in front of the courted entirely through his body, producing im- house and looking in the direction of his mediate death. Although an examination store, Banks assumed a bearing that indi. was at once made of the body and clothing of cated a belligerent state of mind, or that Banks, no weapon was found. Appellant he was armed. He only claimed that he fearwas not seen to fire the shot that killed ed Banks was in Whitesburg to kill him, and Banks, but numerous witnesses testified as to would attempt to do so while there, and that various circumstances that strongly tended his fears were superinduced by the previous to show the shot came from the rear of his threats and conduct of Banks and a former store; and shortly after the shooting a search attempt of the latter to kill him. of the store resulted in the finding, in a place We have read the evidence in this case, of concealment, of the gun used in the shoot having in mind the claim, made by appeling, the appearance of which furnished in- lant's counsel in argument, that the rupture dubitable evidence of its recent use. Ap- of the friendly relations between appellant pellant did not at any time deny that he and Banks occurred after the latter was dishot Banks, but did not admit that he had vorced by his wife, and that whatever indone so until after the finding of the gun. timacy there may have been between appel

The facts thus far stated are undisputed. lant and Mrs. Banks began since the divorce. However, the evidence did not stop with the We do not so understand the evidence. On proof of these facts. There was evidence the contrary, it is reasonably apparent from introduced in behalf of the commonwealth the evidence that, although himself a husfor the purpose of showing a motive for the band, appellant repeatedly called to see Mrs. homicide, which conduced to prove an im- Banks at her home before she was divorced proper, if not criminal, intimacy between the from her husband and in the latter's abappellant and Banks' wife, that finally led to sence, and also that the first difficulty bea rupture of the friendly relations that had tween appellant and Banks took place before long existed between appellant and Banks, the divorce. We refer to the occasion when and later to a suit and judgment divorcing Banks, upon returning home, found appellant Banks and wife. The commonwealth s evi-l in a room with his wife, which so angered


him that he drew a pistol on appellant and summoning of a jury from the county of ordered him from the house. This occur- Pike. Thereupon appellant, who seemed rence was admitted by appellant, as was unwilling to be tried by a Pike county jury, also the fact that it was before Banks and withdrew his application for the change of his wife were divorced. We also find that venue. On April 19th the appellant renewed Mary Whittaker, a daughter of Mrs. Banks, his motion for a change of venue, which the testified that on one occasion in the absence court, the same judge presiding, overruled, of her father appellant was discovered by and ordered that a jury be summoned from her at Banks' house in the night in a dark. Clark county to try appellant. The latter exened room with her mother, and that when cepted to the ruling of the court refusing the she entered that room appellant requested change of venue, but did not object to the her not to tell any one of his presence there. order for the summoning of the jury from It appears from the testimony of the witness Clark county. The case was then continued that this incident occurred prior to the di- to the next, or August, term of the court;

This occurrence was also admitted but, when called at that term, the regular by appellant, with the explanation that he judge of the court being ill, a special judge had heard of Banks making some statement was agreed on to try the case, who, being about him and was there to learn what he present, took the required oath and proceedhad said.

ed to the performance of his duties. On the [1, 2] It is the contention of the common- same day appellant moved the court to set wealth that the evidence was sufficient to aside the order of the previous term, overshow that appellant had a double motive for ruling the motion for a change of venue, and taking the life of Banks: First, because the filed an amended petition in renewal of the jealousy of Banks and his resentment of the motion for a change of venue; the amended relations between appellant and his wife in- petition being supported by a joint affidavit terfered with the continuation of these re- of two of appellant's attorneys. This last lations; second, because of Banks' efforts motion for the change of venue was also to involve appellant in the alleged fraud overruled, to which the appellant excepted. practiced in procuring the dismissal of the The case then went to trial before a Clark action of damages he (Banks) had brought county jury, resulting as already stated. against him for the alienation of his wife's [3] We are not convinced, from the evi. affection, and respecting which fraud Banks dence heard on the first and second motions was to give his deposition the day he was for the change of venue, that the court's ackilled. We think the evidence fully sustains tion in overruling them was an abuse of this contention of the commonwealth. As discretion. As in all such cases, the eviillustrative of the ill feeling between appel-dence was conflicting; but its weight was lant and Banks, growing out of appellant's to the effect that appellant could obtain a relations with his former wife, it appears fair trial in Letcher county, and was in from the evidence that only a few months fact assured thereof by the securing of a before Banks' death they had a difficulty in jury from another county. Whether a change which the latter shot him in the arm. It of venue should be granted in a criminal does not appear from the evidence who was case is a matter within the sound discretion the aggressor in that difficulty, nor is it prop- of the trial court, and its decision therein er that the fact be now ascertained; but, will not be reversed, unless it appears that it whatever may have been the conduct of abused its discretion. Carney V. CommonBanks towards appellant prior to the homi- wealth, 181 Ky. 443, 205 S. W. 408; McDoncide, it is not apparent, from the evidence ald v. Commonwealth, 177 Ky. 224, 197 s. as to what then occurred, that appellant had | W. 665; Mansfield v. Commonwealth, 163 any reasonable grounds for taking the life Ky. 488, 174 S. W. 16; Allen v. Commonof Banks. In other words, the circumstances wealth, 168 Ky. 325, 182 S. W. 176. attending the act show it to have been a pre- [4, 5] What has been said of the first two meditatedly malicious killing, justifying the motions is also true of the one overruled by verdict returned by the jury, and unless the special judge. The affidavit of counsel there was such error on the part of the court showing that certain statements derogatory as prejudiced the appellant in some substan- of appellant and his defense had been made tial right the verdict must stand. Whether at a hotel in Whitesburg by a resident of there was such error remains to be deter- the county in the hearing of some of the mined.

persons summoned from Clark county for The reversal of the judgment is asked on jury service, before the jury to try appellant two grounds, viz.: Error of the court (1) was impaneled, gave no cause for the grantin refusing appellant a change of venue; ing of the change of venue by the special (2) in admitting incompetent evidence. The judge. The statements referred to could motion for a change of venue was first made not have been prejudicial to appellant, as by appellant April 10th, and the trial court, the record of the trial does not show that the regular judge then presiding, after hear- any one serving on the jury heard them. ing evidence, overruled it, and ordered the Aside from what has been said, the second

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and third motions for a change of venue | open, notorious, exclusive, hostile, continuous, might well have been overruled on the ground and adverse for 15 years before the bringing of that the court was without authority to en- the action, and to this end there must have tertain them, for Ky. St. § 1118, provides been such acts of physical possession as would that “not more than one change of venue or put the owner upon notice of the assertion of

a hostile claim. application therefor shall be allowed to any person or the commonwealth in the same 3. ADVERSE POSSESSION 24 - EVIDENCEcase.” Here the first and second motions were

SUFFICIENCY. withdrawn after the order had been made The mere building of an unoccupied cabin overruling them, and later renewed. Each of on land, the ranging of cattle thereon, or the such renewals of the motion should have been occasional cutting of timber therefrom is not

sufficient to show adverse possession. treated as a new application, which is not permitted by the statute. To permit such 4. ADVERSE POSSESSION 16(1) POSSESproceedings would open the way for trifling

SION TO MARKED BOUNDARY. with the courts, which cannot be allowed. While one may enter upon land and acquire

[6, 7] The evidence heard on the trial of title thereto by occupying a portion of it, and which appellant complains consisted in part

claiming the remainder to a well-marked boundof the pleadings in the actions brought by of such a character as to apprise the owner

ary, such occupancy must be continuous, and Banks against appellant, the first being the of a hostile claim to the entire tract, hence the suit for the alienation of his wife's affec- intermittent operation of a water mill on a tions, and the second the action in equity to small stream running through land, coupled set aside, on the ground of fraud, the judg- with the occasional cutting of timber and the ment dismissing the first. The court should building of an unoccupied cabin, will not estabnot have permitted the pleadings in the two lish adverse title to a boundary marked out by actions to have been read, but as the penden

the occupant. cy and object of the actions were competent 5. ADVERSE POSSESSION 115(1) JURY as evidence on the question whether they fur

QUESTION. nished appellant a motive for killing Banks, Ordinarily the question of adverse possesand the court carefully admonished the jury sion is for the jury, but where the facts are adthat the contents of the pleadings could be mitted, and an ordinarily sensible man considered only for that purpose, we cannot tion is for the court.

draw only one conclusion therefrom, the quessay that the reading of the pleadings was reversible error. [8] The other evidence objected to related County.

Appeal from Circuit Court, Breathitt solely to the alleged improper relations between appellant and Banks' wife, both before Action by Peggy Sizemore and others and after the divorce, all of which was com- against H. F. Davis & Co., a corporation. petent on the question of motive, and of this From a judginent for plaintiffs, defendant the jury were repeatedly admonished. Ball appeals. Reversed, and remanded for new

trial, v. Commonwealth, 125 Ky. 601, 101 S. W. 956, 31 Ky. Law Rep. 189; McCandless v.

G. W. Fleenor, of Jackson, for appellant. Commonwealth, 170 Ky. 315, 183 S. W. 1100; Kash & Bach, of Jackson, for appellees. Choate v. Commonwealth, 176 Ky. 427, 195 S. W. 1080.

CLAY, O. Alleging that they were the The record furnishes no reason for dis- owners of a tract of land containing 100 acres turbing the verdict. Appellant had a fair and located in Breathitt county, on the lefttrial, and the judgment must be and is af- hand fork of Wolf creek, plaintiffs, Peggy firmed.

Sizemore and her children, brought this suit against H. F. Davis & Co., a corporation, to recover damages in the sum of $3,000 for cut

ting and removing the timber therefrom. A H. F. DAVIS & CO. v. SIZEMORE et al.

trial before a jury resulted in a verdict and

judgment for plaintiffs in the sum of $1,000. (Court of Appeals of Kentucky. Dec. 20, Defendant appeals. 1918.)

Plaintiffs are the widow and children of 1. TRESPASS C 19(1)-ACTIONS-TITLE.

Thomas Sizemore, deceased. About the year In an action for damages for cutting and 1880 they and their father were living on removing timber on land, title to which plain- a tract of land located about a mile from the tiffs claimed, plaintiffs can recover only on the tract in controversy and separated therestrength of their own title, and not on the from by an intervening tract owned by anweakness of defendant's title.

other. According to the evidence for plain2. ADVERSE PossessION C31TITLE-Evi- | tiffs, Thomas Sizemore, in the early '80's DENCE.

erected a dam across the creek on the land in To establish title by adverse possession, the controversy and built thereon a small millevidence must show that the possession was house, 14 by 14 square, and put in a set of

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grist burrs with which to grind corn. He 106, 31 Ky. Law Rep. 1324; Hall v. Blanton, never cleared or cultivated any of the land, 77 S. W, 1110, 25 Ky. Law Rep. 1400; Muse but his son-in-law felled a few trees and v. Payne, 144 Ky. 30, 137 S. W. 788; Kelley v. built thereon a small cabin which was never Bicknell, 147 Ky. 401, 144 S. W. 88; Smith oocupied. It further appears that some time v. Chapman, 160 Ky. 400, 169 S. W. 834. later he marked a boundary around the land While it is true that, under our law, one may in controversy, and claimed to the extent of enter upon land and acquire title thereto by this boundary. He occasionally cut timber occupying a portion of it and claiming the from the land for the purpose of making remainder to a well-marked boundary for the boards, canoes, etc. From the time the mill statutory period, yet such occupancy must be was built he used it for the purpose of grind- continuous and of such character as to aping corn for the people of the community prise the owner of a hostile claim to the enwhen there was sufficient water for that pur- tire tract. Since the building of the unoccupose. Sometimes Thomas Sizemore and his pied cabin and the occasional cutting of timsons slept and ate in the mill. Thomas | ber from the land did not show an adverse Sizemore was killed in the year 1896. There- holding, these elements may be laid aside. after John Stidham, his son-in-law, attempt. When this is done, plaintiff's case rests soleed to move into the unoccupied cabin nearly on the intermittent use of the water mill. the mill, but John Aikman, through whom If the true owner sees one living on his land, defendant claims, objected, and the cabin or enclosing it, or regularly cultivating it, was never occupied. After Thomas Size- he is charged with notice of the fact that more's death his children ran the mill for such person is asserting a hostile claim, and about 2 years and until it burned down, if such person has marked a well-defined when they and their mother moved to Jack- boundary around the land, this is notice of son county. After that 16 years elapsed the extent of his claim; but when the owner before this suit was brought.

sees one merely operating a water mill on a [1-5] In a case like this, plaintiffs can re- small stream running through his land, and cover only on the strength of their own title, confining his acts of ownership to the use of and not on the weakness of the defendant's the water for that purpose, such acts do not title. Ashcraft v. Courtney, 121 S. W. 625. indicate such an intention to appropriate adTheir claim to title is based solely on additional land as to put him upon notice of the verse possession. To establish title by ad-fact that such party has marked a boundary verse possession, the evidence must show that around his land and is claiming to the extent the possession was open, notorious, exclusive, of that boundary. While ordinarily the queshostile, continuous, and adverse for a period tion of adverse possession is for the jury, yet of 15 years before the bringing of the action. where the facts are admitted, an ordinarily To this end there must have been such open sensible man can draw but one reasonable and notorious acts of physical possession as conclusion therefrom, the question becomes would put the owner upon notice of the as- one for the court. Kentucky Coal Lands Co. sertion of a hostile claim (Whitley County v. Wilder, 165 Ky. 293, 176 S. W. 1155. In Land Co. v. Power's Heirs, 146 Ky. 801, 144 our opinion, the mere operation of the waS. W. 2), and such possession must have been ter mill at such times as the water was sufso continued as to furnish a cause of action ficient, accompanied by a claim of the entire every day during the whole period (Campbell tract to a well-marked boundary, was not v. Thomas, 9 B. Mon. 82). Hence it has been sufficient to constitute an adverse holding of often held that the mere building of an unoc- that portion of the land from which the timcupied cabin on the land, or the masting of ber was cut. That being true, plaintiff showhogs or the ranging of cattle thereon, or the ed no title to the timber in question, and the conducting of a sugar camp at intermittent trial court should have directed a verdict in periods, or the occasional cutting of timber favor of the defendant. therefrom, is not sufficient to show adverse Judgment reversed, and cause remanded possession. Courtney V. Ashoraft, 105 S. W. for a new trial consistent with this opinion.

207 S.W.-2

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