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to disturb the judgment, unless it was against was 75 cents cash and the covenants and the weight of the evidence.

Judgment affirmed.

WARREN OIL & GAS CO. et al. v. GILLIAM.

(Court of Appeals of Kentucky. Jan. 21, 1919.)

1. MINES AND MINERALS

78(1) — LEASE UNREASONABLE DELAY IN PERFORMANCE. Under lease providing that lessor should have royalty of one-eighth of all oil produced and that lessee should begin a well within one year or pay 25 cents an acre for each additional year such beginning was delayed, the main consideration was the royalty and development of the property, and lessee could not refuse to begin development for an unreasonable length of time and extend lease by payment of nominal

rent.

2. MINES AND MINERALS

TURE OF LEASE-NOTICE.

78(3) - FORFEI

While agreed royalty of one-eighth of oil produced and development of property was main consideration for lease, lessor could not forfeit lease for nondevelopment without notifying lessee that he would no longer accept annual rentals provided for each year after first that development was delayed.

3. MINES AND MINERALS 78(2) FORFEITURE OF LEASE-NONPAYMENT OF RENT.

Under oil lease providing that lessee was to begin a well within one year or pay 25 cents an acre for each additional year, where such beginning was delayed, the tender of the rental for the second year before the end of that year was sufficient to avoid forfeiture for failure to pay rent.

4. MINES AND MINERALS LEASE-RIGHTS OF LESSEE.

agreements contained in the lease. The term was five years and as long thereafter as oil or gas was produced by the lessee, his successors or assigns. The agreed royalty was one-eighth of all oil produced and saved from the leased premises.

The material provisions of the lease are as follows:

"The party of the second part agrees to begin a well on said premises within one year from the date hereof, or pay at the rate of 25¢ an acre per year for each additional year such beginning is delayed from the time above mentioned for the beginning of such well until a well is commenced. The above rental shall be paid to the parties of the first part in person or by check to their order, deposited in the P. O. by registered letter to their address at Settle, Ky., or deposited or mailed to their credit in the First National Bank at Scottsville, Ky.; and it is agreed that the beginning of said well shall be and operate as a full liquidation

of all rental under this provision during the re

mainder of the term of lease.

"It is agreed that unless said well is completed or the rental paid as hereinbefore stipulated, this lease shall be and become null and void and of no further force and effect."

On March 4, 1916, Huntsman assigned the lease to W. D. Gilliam, who is now the owner thereof. The lease was recorded in the Allen county clerk's office on October 27, 1917.

On December 19, 1917, Stark executed another lease to the Warren Oil & Gas Company. Prior to the execution of the latter lease, Stark had requested Gilliam to pay the stipulated rental. Gilliam took the position that the rental was not due. However, on February 23, 1918, and before the second year of the lease had expired, Gilliam sent 81-SUBSEQUENT his check to Stark for $7.50, the amount of the agreed rental for the year 1917, which sum Stark refused to accept on the sole ground that he had leased the oil and gas privileges to the Warren Oil & Gas Company. The latter company had both constructive and actual notice of the prior lease to Gilliam.

Defendants, subsequent lessees, who had actual and constructive notice of plaintiff's valid lease which was in force, acquired no rights as against plaintiff, and chancellor properly adjudged that plaintiff had right to have title quieted as against defendants and to have them enjoined from interfering with his right to enter on land and remove the oil.

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This suit was brought by Gilliam against the Warren Oil & Gas Company and Stark to quiet his title to the lease which he own ed, and to enjoin the defendants from entering on the land and interfering with his rights. The latter defended on the ground that Gilliam's lease had been forfeited, not only because he failed to develop the property, but because he failed to pay the stipu lated rental in advance. On final hearing Gilliam was granted the relief prayed for, and the defendants appeal.

[1] It will be observed that the lease in CLAY, C. On February 29, 1916, Festus question provides that the lessee was to beStark executed to Rupert Huntsman a lease gin a well on the premises within one year on 30 acres of land located in Allen county, from the date of the lease, or pay at the rate for the sole purpose of mining and operating of 25 cents an acre per year for each addifor oil and gas therein. The consideration tional year such beginning was delayed. In For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

construing such leases, we have taken the position that the main consideration is the development of the property and the payment of the royalty, and that the lessee cannot, in opposition to the wishes of the lessor, refuse to begin the development of the property for an unreasonable time, and extend the lease indefinitely by the payment of a mere nominal rent. Monarch Oil, Gas & Coal Co. v. Richardson, 124 Ky. 602, 99 S. W. 668, 30 Ky. Law Rep. 824; Dinsmoor v. Combs, 177 Ky. 470, 198 S. W. 59.

CROWE v. COMMONWEALTH.

699

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ant claimed an alibi, evidence held to sustain a In a prosecution for burglary, where defendverdict of guilty.

2. CRIMINAL LAW 374-EVIDENCE-OTHER
OFFENSES.

error, as seeking to prove other offenses, to ask
In a prosecution for burglary, it was not
a witness where she lived, how long she had
lived there, and if her father lived there, and
whether she had seen defendant before, in the
absence of any showing that the jury knew the
intent to make such proof.
3. CRIMINAL LAW

730(9)-MISCONDUCT OF

COUNSEL-CURE OF ERROR.

[2] However, the right of the lessor to forfeit the lease for nondevelopment cannot be arbitrarily exercised. He must first notify the lessee that he will no longer accept the annual rentals and permit his land to remain idle and undeveloped, but will require the lessee to execute the contract according to the intention of the parties by beginning its development in good faith, and if, after such notice and demand, the lessee does not begin the development within a reasonable time, the lessor may then have the lease forfeited. Monarch Oil, Gas & Coal Co. v. Richardson, supra. Here, the lessor did not, at any time, demand that the lessee begin operations and give him a reasonable opportunity to do so. That being true, there is no basis for the contention that the lease Appeal from Circuit Court, Kenton County, in question was forfeited because of the les-Criminal, Common Law and Equity Division. see's failure to begin operations.

In a burglary prosecution, a statement by the prosecuting attorney that "I believe that fendants was not reversible error, as expressing this robbery was deliberately planned" by dethe prosecuting attorney's individual opinion, when he immediately corrected it by saying he believed such facts could be inferred from the testimony, and in view of cautionary instructions.

John Crowe was convicted of burglary, aft

John B. O'Neal, of Covington, for appel

H. Morris, Atty. Gen., and Overton Hogan,
Stephens L. Blakely, of Covington, Chas.
Asst. Atty. Gen., for the Commonwealth.

[3] Equally without merit is the conten- er a severance, and he appeals. Affirmed. tion that the lease in question was forfeited because of the lessee's failure to pay the stip-lant. ulated rental in advance. Under the lease in question, the stipulated rental was not payable for the first year, but only for each additional year the beginning of operations was delayed. There is nothing in the contract from which it can be inferred that the rental was payable in advance. In construing a similar lease in the case of Dix River Barytes Co. v. Pence, 123 S. W. 263, we held that, where no operations were commenced during the second year, the stipulated rental was not due until the end of that year. That being true, the tender of the rental for the second year before the end of that year, in the manner provided by the contract, was sufficient to avoid a forfeiture. [4] Since plaintiff's lease was valid and in force, it necessarily follows that defendants, who had both actual and constructive notice of plaintiff's lease, acquired no rights under their lease as against plaintiff. Hence the chancellor properly adjudged that plaintiff had the right to have his title to the oil and gas under the leased land quieted as against the defendants and to have them enjoined from interfering with his right to enter on the land and remove the oil. Kahle v. Crown Oil Co., 180 Ind. 131, 100 N. E. 681. Judgment affirmed.

SAMPSON, J. In June, 1917, John Crowe and Fred Crowe, brothers, were jointly indicted in the Kenton circuit court for the crime of "feloniously breaking and entering in the dwelling house of another, with intent to steal therefrom, and unlawfully and feloniously taking, stealing, and carrying away therefrom articles of value." Defendants moved for a severance of trial, and the commonwealth elected to try John Crowe first. After several continuances, and various preliminary motions, a jury was impaneled, and after hearing the evidence, instructions of the court, and argument of counsel, returned the following verdict:

"We, the jury, find the within named John Crowe, defendant herein, is guilty as charged in this indictment, and fix his penalty at five (5) years in the penitentiary."

Crowe prosecutes this appeal.
Judgment was entered on the verdict, and

ment on three grounds only: (1) The verdict
Appellant urges a reversal of the judg-
was flagrantly against the evidence; (2) the

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

court permitted the introduction of improper pockets, relieving him of his pocketbook, and prejudicial evidence over the objection money, and some papers. The burglars were of appellant; (3) the attorney for the com- not masked, but were well-dressed young monwealth in his closing argument to the men. During the interval between the apjury was guilty of misconduct prejudicial to pearance and departure of the burglars, sevthe rights of the defendant, to which timely eral members of the Pieper family obtained objection was made. close and plain views of the second burglar, whom they later identified as John Crowe. No member of the Pieper family appears to have known the Crowe boys before the night of the burglary. The burglars made their escape, and while they were doing this Joe Pieper, the sick man, called the police de|partment and notified them of the occurrence. Some ten days later the defendants were arrested upon the charge.

The defense is an alibi. John Crowe claims he did not even know where the Piepers lived; that he was at Germania Hall, in Coy ington, on the night of the burglary, with a party of friends, by whom he proves his whereabouts. He says Germania Hall did not close until 12 o'clock that night; that he was in the hall at the time it closed; that he immediately went with a lady friend to a restaurant, where he ordered a lunch and sat for some 30 minutes; thereafter he and the friend walked down to the Covington end of the suspension bridge, which crosses the Ohio river, and waited at the bridge for a party who had promised to meet them, and then walked back to a restaurant which he named, and there loafed a while up until 2 o'clock in the morning. As the burglary happened about 12:30 o'clock at night, it is the contention of counsel for Crowe that it was a physical impossibility for the accused to have been at the Pieper home, which was at least one mile distant from Germania Hall and the places mentioned.

The defendants are charged with burglarizing the house of Mrs. Pieper, on Greenup street, in the city of Covington, on the night of March 6, 1917, and stealing and taking away a set of diamond earrings, of the value of $1,000, a small diamond pin, and a pocketbook containing $39 in cash. Mrs. Pieper was an invalid, and had living with her three daughters and two sons. Joe Pieper, one of the sons, was sick of pneumonia; the other son, Edd Pieper, was attending to business and was out of the house at the time the burglars entered it; the burglary occurred about 12:20 or 12:30 in the morning; the family was sleeping upstairs; the four bedrooms were all entered from a hall in which a gas light was kept burning each night; the doors were close together; the sick son was awakened by a noise at his door, and upon looking he saw the door open and a man enter; the gas light had been turned out; the burglar had a flash light; when the sick young man inquired who it was, the burglar threw a light in his face and covered him with a pistol, demanding that he lie down and keep quiet. This he did; about the same time another burglar entered the room with a flash light, searching the drawers of the dresser and other secret places for valuables. While this was going on, one of the daughters in another room, having heard a commotion in her brother's room, came in suddenly and was caught in the arms of one of the burglars, who made her lie down on the floor. In the [1] The commonwealth contends that the meantime the first burglar had continued to alibi is pure fiction; that the witnesses incover the young man in bed with his pistol troduced by appellant to sustain the alibi and light. One of the other sisters, hearing are mistaken about the night upon which a noise and observing that the gas light had Crowe was at Germania Hall and walked been extinguished in the hall, arose and re- down to the bridge and other places about lighted the gas. This enabled the sick son which he testified. To sustain the charge in to see the features of one of the burglars, the indictment, the commonwealth introducwhom he afterwards identified as Fred ed Edd Pieper, from whom the pocketbook Crowe. The other burglar, having entered and money were taken, his sisters, Flora the room of the mother, required her to keep Pieper and Agnes Pieper, all of whom posiquiet while he searched the dresser for val- tively identified John Crowe as the man who uables; and while he was engaged in this entered their room on the night in question Miss Flora Pieper ran into the room, and and took the diamond earrings and money. the burglar, observing she had earrings, re- Joe Pieper was also introduced, who testiquired her to lie down while he took the ear-fied concerning the burglary and the appearrings from her ears. This, of course, creat- ance of the burglars, and who identified ed more or less commotion, and the other Fred Crowe, the brother of John, as one of son, Edd Pieper, entering the hall below and the men. Fred Crowe was also shown to hearing a noise in his mother's room, ran have been at Germania Hall at the same up to see what was the matter, only to be time John claims to have been there. While backed out of the room into the hall by a there are a number of witnesses who testified burglar pointing a light and pistol in his to facts in corroboration of John Crowe and face. He was required to lie down on the in support of his alibi, some of them are of floor while the burglar went through his very questionable character; others, good

fore?" could not have indicated to the jury, or to others, that the witness had upon a former occasion seen the defendant committing another crime.

people. The evidence for the commonwealth you ever seen either of the defendants beis direct, certain, and convincing, and leaves no doubt that John Crowe was one of the burglars who entered the house on the night in question. The jury was the judge of the facts, and was thoroughly justified, under the evidence, in returning a verdict of guilty. [2] 2. It is next complained that improper and prejudicial evidence was introduced by the commonwealth, over the objection of the defendant. This objection is based upon the commonwealth's attorney calling Margaret Koch and her father, Rufus Koch, who were asked the following questions:

"Q. Please state your name. A. Margaret

Koch.

"Q. Where do you live? A. At the southeast corner of Pleasant and Greenup streets, Covington, Ky.

"Q. How long have you lived there? Eight years in April.

A.

Q. Does your father live there? A. Yes, sir. "Q. I will ask you to look at John and Fred Crowe, and state if you have ever seen either one of them before. (Objection by defendant. Objection sustained. Commonwealth avows.)"

These, in substance, were the only questions propounded to either of the witnesses; they gave no other evidence. The questions asked them, and the answers which they gave, might properly have been asked and received from any other witness introduced on either side without prejudicial error. But the attorney for appellants urges that the commonwealth's attorney had some ulterior motive in his mind, and was attempting to and intending to elicit answers from the witnesses, which would have been incompetent.

It is insisted that the attorney for the commonwealth was endeavoring to get before the jury evidence of other crimes committed by the defendant; that appellant's character was not good; that this, in some unknown and mysterious manner, was communicated to the jury, and had a prejudicial effect upon the rights of the defendant at the trial. From the avowals we are convinced that the evidence which the attorney for the commonwealth intended to introduce by the witnesses would have been incompetent upon the trial. Nevertheless we are quite unable to see in what way the rights of defendant were prejudiced by the asking of such innocent questions as quoted above. We are not to presume that the jury was influenced in its verdict by the questions alone, nor that the commonwealth's attorney or the trial judge entertained sinister motives in offering and allowing the witnesses to appear. While it would not have been competent for the commonwealth to have introduced evidence of other crimes by the defendant, the calling of a witness and propounding questions concerning his name, residence, etc., followed by the question, “Have

Several very similar questions were propounded to other witnesses upon the trial, to which no objection was made, or could reasonably have been made. Occult power alone on the part of the jury could have transmitted to them knowledge of the fact that the commonwealth's attorney desired to prove the commission of other crimes. The court properly sustained the objection to the questions and excluded the evidence, but we cannot agree with counsel for appellant that the evidence heard was prejudicial to the rights of the defendant.

[3] 3. The argument made by commonwealth's attorney, of which complaint is made, is largely copied in the record. This court has held it reversible error for the prosecuting attorney, in argument before the jury, to declare his individual opinion or belief of the guilt of the defendant, not expressly stated to be based upon the evidence. Howard v. Commonwealth, 110 Ky. 356, 61 S. W. 756, 22 Ky. Law Rep. 1845. The first statement made by the prosecuting attorney, of which complaint is made, is: "I believe that this robbery was deliberately planned by Fred Crowe and John Crowe."

To this statement objection was made, and the court said to counsel and the jury: "The court states to the jury that the attorney for the commonwealth may draw any reasonable inference from the testimony."

The commonwealth's attorney then proceeded:

"As just stated, I believe from the testimony that the inference may be drawn that John Crowe and Fred Crowe deliberately planned that robbery and deliberately planned and manufactured this alibi at the same time."

To this statement counsel for defendant also objected, and the court again said to the jury:

"Gentlemen of the Jury: You will be governed by the testimony of the witnesses on the witness stand under oath in reaching your verdict; you will reach that verdict solely from the sworn statements of the witnesses, and not from the statements of counsel on either side."

The commonwealth's attorney then proceeded, saying:

"Now, gentlemen of the jury, it is rather difficult for me to proceed, as Mr. O'Neal wants to take up my time; but I want you to bear with me while I pick it up again. I say these things Mr. O'Neal has been trying to testify a good to be true upon the testimony of the witnesses. deal in this case. As you know, the only testimony you can consider is the testimony of the witnesses, under oath.”

J. D. Via, of Clinton, for appellant. Bennett, Robbins & Robbins, of Clinton, for appellee.

CLARKE, J. Appellant is a fraternal insurance society, with a local council at Clinton, Ky., of which Susie E. Dean, when she died on July 23, 1916, was a member in good standing, and to whom appellant had issued, upon her written application therefor, a benefit certificate for $1,000, payable to her father, the appellee, upon her death. Appellant having refused to pay to appellee the amount of the policy after receipt of proof of her death, he filed this action to enforce the payment.

We are of opinion that the admonition of the court, as well as the correction made by the commonwealth's attorney, fully cured any error, if any there was, made by the first statement above quoted from the argument. There could have been no doubt left in the minds of the jury as to their right to consider statements of the attorney for the commonwealth, except those based upon the testimony of the witnesses. In discussing the evidence it was not improper for the commonwealth's attorney to draw inferences therefrom, and it was natural, we think, in argument of this case, from the evidence to the jury, to declare that the alibi was a fabrication. Unless it was a fabrication, the positive identification made by the three Pie- Appellant as a defense alleged that in her per witnesses was false and untrue. The written application the deceased falsely and theory of the defendant and that of the com- fraudulently represented that her mother monwealth is so utterly irreconcilable that had died of "change of life," when as a the jury was compelled to accept the evi- matter of fact she died of pulmonary tubercudence of one and reject that of the other. It losis, and that a false representation about was in the province of the jury to consider her family history rendered the policy void the credibility of the witnesses and accept under the provisions of the society's by-laws the rational, reasonable view only, and re- made a part of the insurance certificate. turn a verdict in accordance with the facts. The plaintiff denied that the statement No complaint is made of the instructions sub-made was false or fraudulent or material, mitting the case to the jury. There being a and upon a trial of this sole issue the court, controverted question of fact properly sub- at the conclusion of all the evidence, directed mitted to the jury, its verdict thereon will a verdict for the plaintiff, and the defendant not be disturbed, unless it be palpably against has appealed from the judgment entered the evidence, which is not true in this case. The judgment is affirmed.

NATIONAL COUNCIL OF KNIGHTS AND
LADIES OF SECURITY v. DEAN.

(Court of Appeals of Kentucky. Jan. 24, 1919.)
1. INSURANCE 723(7)—FRATERNAL INSUR-
ANCE-FALSE STATEMENTS.

Where a member of a fraternal insurance society, to whom a benefit certificate was issued, made a false statement in her application as to the cause of her mother's death, held that, under Ky. St. § 639, a directed verdict for the beneficiary was improper, if there was any evidence that the statement complained of was either fraudulently made or material.

2. INSURANCE

thereon.

[1] It was shown without contradiction that the insured's mother died of tuberculosis, and hence the court erred in directing a verdict in plaintiff's favor, if there was any evidence that the statement complained of was either fraudulently made or material. See section 639, Kentucky Statutes.

[2] Defendant proved by Dr. Fred Beeler that he treated the mother of Susie E. Dean, for tuberculosis "a good many years before she died"; that Susie E. Dean was at the time and until her mother's death living in the same home with her; that Susie was then a good-sized girl, nearly grown, and when asked "if the entire family, including Susie, did not know that Sarah Dean (her mother) had consumption while you were treating her," answered:

"I said the family knew it. I never did talk 825(2)-FRATERNAL INSUB- to the girl, I don't think. I don't know whether ANCE-FALSE STATEMENTS-FRAUD. the girl knew or not-I should think she would have."

In an action on a certificate issued by a fraternal insurer, held, under the evidence, that the issue whether the false statement made by the member as to the cause of her mother's death was fraudulently made was for the jury.

Appeal from Circuit Court, County.

Hickman

Action by John C. Dean against the National Council of the Knights and Ladies of Security. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This witness further testified that Mrs.

Dean had "passed through with the period of the change of life" some time before her death, and after Susie was about grown. It is shown by other witnesses that Mrs. Dean had been afflicted with tuberculosis for a long time, during which time the family consisted of the father, mother, and Susie. This is certainly some evidence, though circumstantial, that the insured knew her moth

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

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