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

[12] What has been said with reference to the number of the bond and coupons applies with equal force to the contention with reference to the retracing of the name of the county clerk on the coupons, conceding that such retracing sufficiently appeared upon inspection. Upon this point the clerk himself, when examined as a witness, acknowledged having signed the coupons at the beginning, but was unable to say that his name had been retraced. However, such retracing is not placed by the law upon a par with forgery, since the person doing the retracing is not attempting to give validity to a thing which never had any, but rather to preserve that which did have validity.

In 2 Corpus Juris, 1220, the text says: “To retrace words already written is not of itself sufficient to vary the legal effect of the instrument, as where pencil writing is retraced with ink, and constitutes no alteration."

This text is supported by Reed v. Roark, 14 Tex. 329, 65 Am. Dec. 127; Dunn v. Clements, 52 N. C. 58; Tutwiler v. Burns, 160 Ala. 386, 49 South. 455. Besides, section 125 of our Negotiable Instruments Law, which is largely declarative of the common law upon the subject, does not include the character of alterations here complained of as material ones. We therefore conclude that defendant's contention in these respects cannot be upheld.

[13] Lastly, it is insisted that if the bond sued on was discharged and canceled, or if never issued, but canceled, and afterwards fraudulently procured and the cancellation entirely erased, plaintiff is not a holder in due course, and the defense of payment and nonissue ought to prevail, and some authorities are cited in support of this contention. But, in view of what has been said in a former part of this opinion, to decide that question now would be to pronounce the law upon a supposed and not an actual state of facts, since we have determined that there is no evidence of the bond either having been paid or canceled.

The question attempted to be raised and argued by counsel is one of such seriousness and importance as that we do not feel inclined to determine it, in the absence of

FRAZIER v. COMMONWEALTH.

(Court of Appeals of Kentucky. Dec. 20, 1918.) 1. HOMICIDE 189- SELF-DEFENSE - EVIDENCE-PREVIOUS DIFFICULTIES.

In a homicide case, where defendant set up self-defense, evidence as to who was the aggressor in a difficulty occurring months previous to the killing is inadmissible.

2. HOMICIDE 231, 232–Murder-PreMEDITATION AND MALICE-EVIDENCE.

In a homicide case, evidence held sufficient to sustain finding that a killing was premeditated and malicious. 3. CRIMINAL LAW

1150-REVIEW-CHANGE

OF VENUE-DISCRETION of Court.

Whether change of venue should be granted in a criminal case is a matter within the sound

discretion of the trial court, and its decision thereon will not be reversed, unless it appears that it abused its discretion.

4. CRIMINAL LAW 1117-RECORD-CHANGE OF VENUE-DENIAL.

Denial of motion for change of venue on account of derogatory statements concerning accused, made in the presence of persons summoned from another county for jury service, cannot be held prejudicial, where the record of the trial does not show that any one serving on the jury heard them.

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7. HOMICIDE ~338(4) — HARMLESS ERRor — EVIDENCE.

In a homicide case, it was not reversible error to permit pleadings in a case by deceased fections to be read in evidence, where the court against accused for alienation of his wife's afcarefully admonished the jury that contents of the pleadings could be considered only for the purpose of showing that accused had a motive for killing deceased.

8. HOMICIDE 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 opinion ed'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,

Upon the whole case we are convinced that the plaintiff was entitled to a directed verdict in its favor, and the judgment is reversed, for a new trial and for proceedings in accordance herewith.

Appeal from Circuit Court, Letcher County. James H. Frazier was convicted of murder, and he appeals. Affirmed.

W. H. May, of Prestonburg, E. E. Hogg, of Booneville, J. M. Benton, of Winchester, A.

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

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

David Hays, of Whitesburg, Chas. H. Morris, Atty. Gen., Overton S. Hogan, Asst. Atty. Gen., and R. Monroe Fields, Commonwealth's Atty., of Whitesburg, for the Commonwealth.

SETTLE, C. J. The appellant, James H. Frazier, was tried and convicted in the court below under an indictment charging him with the murder of William Banks, and his punishment fixed by the verdict of the jury at confinement in the penitentiary for life. He was refused a new trial, and has appealed.

happening of these events Banks brought an action in the Letcher circuit court seeking the recovery of large damages against appellant for the alienation of his wife's affection, which was dismissed upon the production in court by appellant of a writing so directing, purporting to have been signed or authorized by Banks, but the execution of which Banks thereafter denied, following the denial with an action in equity to set aside, on the ground of fraud, the judgment dismissing his suit for damages against appellant. The evidence further tended to prove that Banks was in Whitesburg on the day he was killed for the purpose of giving his deposition in that case, of which appellant, as defendant in the action, had received due notice.

Before considering the grounds urged by his counsel for a reversal of the judgment, it will be proper to briefly state the material facts of the homicide. Appellant shot and killed Banks on the morning of November 9, 1917, in Whitesburg. The shooting was done with a "high-power" rifle owned by appellant and kept in his store. Immediately before the shooting, Banks came out of the courthouse in front of the rear door of ap pellant's store, and after pausing at the entrance for a moment, with his hand resting on a cement post of the courthouse, walked across the street in a direction that would have taken him away from the store. Appellant, who was standing in or near his rear store door, saw Banks come out of the courthouse, and at once secured his gun, returned to the store door, and shot at Banks, who was then about 75 yards from him and walking with his back toward him. The ball from the rifle entered the back of Banks and passed entirely through his body, producing immediate death. Although an examination was at once made of the body and clothing of Banks, no weapon was found. Appellant was not seen to fire the shot that killed Banks, but numerous witnesses testified as to various circumstances that strongly tended to show the shot came from the rear of his store; and shortly after the shooting a search 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 appelThe 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. 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- in a room with his wife, which so angered

The facts as to motive furnished by the foregoing evidence were in the main denied by appellant in testifying for himself, and additional evidence in his behalf, furnished by his own testimony and that of other witnesses, conduced to show that Banks bore him great ill will, and that, in addition to being at all times offensive in his demeanor toward appellant, he had threatened to kill him, and at one time shot and wounded him. In telling of the killing appellant said that, when Banks came out of the courthouse, he paused with his hand on the cement post, looked for a moment in the direction of his store door, and then turned and walked away with his back toward the store, whereupon appellant procured the gun, which was near at hand, and shot him. He did not say that, when standing in front of the courthouse and looking in the direction of his store, Banks assumed a bearing that indicated a belligerent state of mind, or that he was armed. He only claimed that he feared Banks was in Whitesburg to kill him, and would attempt to do so while there, and that his fears were superinduced by the previous threats and conduct of Banks and a former attempt of the latter to kill him.

On

him that he drew a pistol on appellant and ordered him from the house. This occurrence was admitted by appellant, as was also the fact that it was before Banks and his wife were divorced. We also find that Mary Whittaker, a daughter of Mrs. Banks, testified that on one occasion in the absence of her father appellant was discovered by her at Banks' house in the night in a darkened room with her mother, and that when she entered that room appellant requested her not to tell any one of his presence there. It appears from the testimony of the witness that this incident occurred prior to the divorce. This occurrence was also admitted by appellant, with the explanation that he had heard of Banks making some statement about him and was there to learn what he had said.

As

[1, 2] It is the contention of the commonwealth that the evidence was sufficient to show that appellant had a double motive for taking the life of Banks: First, because the jealousy of Banks and his resentment of the relations between appellant and his wife interfered with the continuation of these relations; second, because of Banks' efforts to involve appellant in the alleged fraud practiced in procuring the dismissal of the action of damages he (Banks) had brought against him for the alienation of his wife's affection, and respecting which fraud Banks was to give his deposition the day he was killed. We think the evidence fully sustains this contention of the commonwealth. illustrative of the ill feeling between appellant and Banks, growing out of appellant's relations with his former wife, it appears from the evidence that only a few months before Banks' death they had a difficulty in which the latter shot him in the arm. It does not appear from the evidence who was the aggressor in that difficulty, nor is it proper that the fact be now ascertained; but, whatever may have been the conduct of Banks towards appellant prior to the homicide, it is not apparent, from the evidence as to what then occurred, that appellant had any reasonable grounds for taking the life of Banks. In other words, the circumstances attending the act show it to have been a premeditatedly malicious killing, justifying the verdict returned by the jury, and unless there was such error on the part of the court as prejudiced the appellant in some substantial right the verdict must stand. Whether there was such error remains to be determined.

The reversal of the judgment is asked on two grounds, viz.: Error of the court (1) in refusing appellant a change of venue; (2) in admitting incompetent evidence. The motion for a change of venue was first made by appellant April 10th, and the trial court, the regular judge then presiding, after hear ing evidence, overruled it, and ordered the

summoning of a jury from the county of Pike. Thereupon appellant, who seemed unwilling to be tried by a Pike county jury, withdrew his application for the change of venue. On April 19th the appellant renewed his motion for a change of venue, which the court, the same judge presiding, overruled, and ordered that a jury be summoned from Clark county to try appellant. The latter excepted to the ruling of the court refusing the change of venue, but did not object to the order for the summoning of the jury from Clark county. The case was then continued to the next, or August, term of the court; but, when called at that term, the regular judge of the court being ill, a special judge was agreed on to try the case, who, being present, took the required oath and proceeded to the performance of his duties. On the same day appellant moved the court to set aside the order of the previous term, overruling the motion for a change of venue, and filed an amended petition in renewal of the motion for a change of venue; the amended petition being supported by a joint affidavit of two of appellant's attorneys. This last motion for the change of venue was also overruled, to which the appellant excepted. The case then went to trial before a Clark county jury, resulting as already stated.

[3] We are not convinced, from the evidence heard on the first and second motions for the change of venue, that the court's ac tion in overruling them was an abuse of discretion. As in all such cases, the evidence was conflicting; but its weight was to the effect that appellant could obtain a fair trial in Letcher county, and was in fact assured thereof by the securing of a jury from another county. Whether a change of venue should be granted in a criminal case is a matter within the sound discretion of the trial court, and its decision therein will not be reversed, unless it appears that it abused its discretion. Carney v. Commonwealth, 181 Ky. 443, 205 S. W. 408; McDonald v. Commonwealth, 177 Ky. 224, 197 S. W. 665; Mansfield v. Commonwealth, 163 Ky. 488, 174 S. W. 16; Allen v. Commonwealth, 168 Ky. 325, 182 S. W. 176.

[4, 5] What has been said of the first two motions is also true of the one overruled by the special judge. The affidavit of counsel showing that certain statements derogatory of appellant and his defense had been made at a hotel in Whitesburg by a resident of the county in the hearing of some of the persons summoned from Clark county for jury service, before the jury to try appellant was impaneled, gave no cause for the granting of the change of venue by the special judge. The statements referred to could not have been prejudicial to appellant, as the record of the trial does not show that any one serving on the jury heard them. Aside from what has been said, the second

and adverse for 15 years before the bringing of the action, and to this end there must have been such acts of physical possession as would put the owner upon notice of the assertion of a hostile claim.

3. ADVERSE POSSESSION 24-EVIDENCESUFFICIENCY.

The mere building of an unoccupied cabin on land, the ranging of cattle thereon, or the occasional cutting of timber therefrom is not sufficient to show adverse possession. 4. ADVERSE POSSESSION 16(1) SION TO MARKED BOUNDARY.

POSSES

and third motions for a change of venue [open, notorious, exclusive, hostile, continuous, might well have been overruled on the ground that the court was without authority to entertain them, for Ky. St. § 1118, provides that "not more than one change of venue or application therefor shall be allowed to any person or the commonwealth in the same case." Here the first and second motions were withdrawn after the order had been made overruling them, and later renewed. Each of such renewals of the motion should have been treated as a new application, which is not permitted by the statute. To permit such proceedings would open the way for trifling with the courts, which cannot be allowed. [6, 7] The evidence heard on the trial of which appellant complains consisted in part of the pleadings in the actions brought by Banks against appellant, the first being the suit for the alienation of his wife's affections, and the second the action in equity to set aside, on the ground of fraud, the judgment dismissing the first. The court should not have permitted the pleadings in the two actions to have been read, but as the pendency and object of the actions were competent as evidence on the question whether they furnished appellant a motive for killing Banks, and the court carefully admonished the jury that the contents of the pleadings could be considered only for that purpose, we cannot say that the reading of the pleadings was reversible error.

[8] The other evidence objected to related solely to the alleged improper relations between appellant and Banks' wife, both before and after the divorce, all of which was competent on the question of motive, and of this the jury were repeatedly admonished. Ball v. Commonwealth, 125 Ky. 601, 101 S. W. 956, 31 Ky. Law Rep. 188; McCandless v. Commonwealth, 170 Ky. 315, 185 S. W. 1100; Choate v. Commonwealth, 176 Ky. 427, 195 S. W. 1080.

While one may enter upon land and acquire title thereto by occupying a portion of it, and claiming the remainder to a well-marked boundof such a character as to apprise the owner ary, such occupancy must be continuous, and of a hostile claim to the entire tract, hence the intermittent operation of a water mill on a small stream running through land, coupled with the occasional cutting of timber and the building of an unoccupied cabin, will not establish adverse title to a boundary marked out by the occupant.

5. ADVERSE POSSESSION
QUESTION.

115(1) . JURY

Ordinarily the question of adverse possession is for the jury, but where the facts are admitted, and an ordinarily sensible man draw only one conclusion therefrom, the ques

tion is for the court.

can

Appeal from Circuit Court, Breathitt County.

Action by Peggy Sizemore and others against H. F. Davis & Co., a corporation. From a judgment for plaintiffs, defendant appeals. Reversed, and remanded for new trial.

G. W. Fleenor, of Jackson, for appellant.
Kash & Bach, of Jackson, for appellees.

CLAY, C. 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 trial, and the judgment must be and is affirmed.

H. F. DAVIS & CO. v. SIZEMORE et al. (Court of Appeals of Kentucky. Dec. 20, 1918.)

1. TRESPASS 19(1)-ACTIONS-TITLE.

In an action for damages for cutting and removing timber on land, title to which plaintiffs claimed, plaintiffs can recover only on the strength of their own title, and not on the weakness of defendant's title.

2. ADVERSE POSSESSION 31-TITLE-EVI

DENCE.

To establish title by adverse possession, the evidence must show that the possession was

and located in Breathitt county, on the lefthand fork of Wolf creek, plaintiffs, Peggy Sizemore and her children, brought this suit against H. F. Davis & Co., a corporation, to recover damages in the sum of $3,000 for cutting and removing the timber therefrom. A trial before a jury resulted in a verdict and judgment for plaintiffs in the sum of $1,000. Defendant appeals.

Plaintiffs are the widow and children of Thomas Sizemore, deceased. About the year 1880 they and their father were living on a tract of land located about a mile from the tract in controversy and separated therefrom by an intervening tract owned by another. According to the evidence for plaintiffs, Thomas Sizemore, in the early '80's erected a dam across the creek on the land in controversy and built thereon a small millhouse, 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 occupied. 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 near ly 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 before this suit was brought.

the extent of his claim; but when the owner sees one merely operating a water mill on a small stream running through his land, and confining his acts of ownership to the use of the water for that purpose, such acts do not indicate such an intention to appropriate ad

[1-5] In a case like this, plaintiffs can recover only on the strength of their own title, and not on the weakness of the defendant's title. Ashcraft v. Courtney, 121 S. W. 625. Their claim to title is based solely on additional land as to put him upon notice of the verse possession. To establish title by adverse possession, the evidence must show that the possession was open, notorious, exclusive, hostile, continuous, and adverse for a period of 15 years before the bringing of the action. To this end there must have been such open and notorious acts of physical possession as would put the owner upon notice of the assertion of a hostile claim (Whitley County Land Co. v. Power's Heirs, 146 Ky. 801, 144 S. W. 2), and such possession must have been so continued as to furnish a cause of action every day during the whole period (Campbell v. Thomas, 9 B. Mon. 82). Hence it has been often held that the mere building of an unoccupied cabin on the land, or the masting of hogs or the ranging of cattle thereon, or the conducting of a sugar camp at intermittent periods, or the occasional cutting of timber therefrom, is not sufficient to show adverse possession. Courtney v. Ashcraft, 105 S. W. 207 S.W.-2

fact that such party has marked a boundary around his land and is claiming to the extent of that boundary. While ordinarily the question of adverse possession is for the jury, yet where the facts are admitted, an ordinarily sensible man can draw but one reasonable conclusion therefrom, the question becomes one for the court. Kentucky Coal Lands Co. v. Wilder, 165 Ky. 293, 176 S. W. 1155. In our opinion, the mere operation of the water mill at such times as the water was suf ficient, accompanied by a claim of the entire tract to a well-marked boundary, was not sufficient to constitute an adverse holding of that portion of the land from which the timber was cut. That being true, plaintiff showed no title to the timber in question, and the trial court should have directed a verdict in favor of the defendant.

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

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