Robert Barton was indicted for disfiguring an animal, and he appeals. From a judgment of acquittal, the Commonwealth dinance impartially, and if the failure to so James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth. P. Sandidge, of Burkesville, for appellee. COMMONWEALTH v. BARTON. (Court of Appeals of Kentucky. April 30, 1913.) 1. CRIMINAL LAW (§ 59*) - PARTIES TO OrFENSES "ACCOMPLICES.' - The term "accomplices" includes all persons concerned in the commission of a crime, whether as principals in the first or second degree or merely as accessories before or after the fact. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 1, pp. 75-79; vol. 8, p. 7561.] 2. CRIMINAL LAW (§ 510*)—EVIDENCE OF ACCOMPLICES. At common law the rule that the jury should not convict on the unsupported testimony of an accomplice was one of practice, and a conviction on such evidence could not be quashed as illegal; the better practice being for the judge to advise the jury to acquit unless the accomplice's testimony be corroborated as to accused's participation. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1124-1126; Dec. Dig. § 510.*] 3. CRIMINAL LAW (§ 510*)-EVIDENCE OF AC COMPLICE. Cr. Code Prac. § 241, provides that conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect accused with the commission of the "offense," and section 242 provides that where by law two witnesses, or one with corroborating circumstances, are required to warrant conviction, if the requirement be not fulfilled, the court shall direct an acquittal, and the jury shall be bound thereby. Held, that the statute requiring corroboration of an accomplice's testimony applied to misdemeanors as well as to felonies. MILLER, J. The appellee, Robert Barton, castrated a boar belonging to Langston Durberry. The boar died, and Barton was indicted under section 1249 of the Kentucky Statutes, which reads as follows: "If any person shall unlawfully kill, disfigure, injure, maim, poison or attempt to administer poison to any cattle, not his own, he shall be fined not less than ten nor more than one thousand dollars, or imprisoned not less than one nor more than twelve months, or both so fined and imprisoned." The only witnesses to the affair were Frazier and Robinson, who testified that, at the request of Barton, Frazier held the hog's nose to keep it from squealing, and Robinson held the hog's legs while Barton castrated him. At the conclusion of this evidence, the trial court instructed the jury to find the appellee not guilty, which was done, upon the ground that, Frazier and Robinson being accomplices and equally guilty with Barton and uncorroborated, the charge had not been proved. The commonwealth appeals. and 242 of the Criminal Code of Practice, This ruling was made under sections 241 which read as follows: "Sec. 241. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show that the offense was committed, and the circumstances thereof. "Sec. 242. In all cases where, by law, two witnesses, or one witness with corroborating circumstances, are requisite, to warrant a conviction, if the requisition be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, by which instruction they are bound." Unquestionably Frazier and Robinson were accomplices of Barton. It is stoutly contended, however, in behalf of the commonwealth that these sections of the Code, relating to the evidence of accomplices, do not apply in misdemeanor cases. In support of this contention, appellant points out that under section 11 of the Criminal Code it is provided that a public offense, of which the [Ed. Note. For other cases, see Criminal only punishment is a fine, may be prosecuted Law, Cent. Dig. §§ 1124-1126; Dec. Dig. by a penal action in the name of the com510.*] monwealth, and that the proceedings in penal Appeal from Circuit Court, Cumberland actions are regulated by the Code of PracCounty. tice in civil actions. It is argued that this For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Code provision puts misdemeanors, punish- | of "seven-up" with Tom Duncan, King Dunable by a fine only, upon the footing of civil can, and Morgan. The state relied solely actions. On the other hand, appellee con- upon the testimony of the two Duncans and tends that in penal actions a plea of "not of Morgan, the accomplices in the game; guilty" is sufficient, and unanimity of the and, in that case as in this, the circuit court jury is required to find a verdict; thus con- peremptorily instructed the jury to find the fining the action in these two respects, at defendant not guilty. Section 1938 of Gantt's least, within the rules applicable to criminal Arkansas Digest is a verbatim copy of secprosecutions. If the question had to be de- tion 241 of the Kentucky Criminal Code of cided under the common law, and without Practice, above quoted. In affirming the the influence of precedents or the statute, ruling of the circuit court, the Supreme we would be inclined to give great weight Court of Arkansas said: "It is submitted to the argument of appellant. by the Attorney General that this section applies to felonies only, and not to misdemeanors; but its expressions are general, and there is nothing in its context to indicate that it was the intention of the Legislature to limit its application to felonies. At common law, the practice of requiring confirmation of an accomplice applied to misdemeanors as well as felonies. Roscoe, Cr. Ev. 156; 1 Phillips, Ev. 112; 2 Russell on Cr. 967. Regina v. Farler, 8 Car. & Payne, 106, is cited by Roscoe, Phillips, and Russell to show that it applied in misdemeanors. Before the statute it was matter of practice; but the statute makes it absolute law that the testimony of an accomplice must be corroborated to warrant a conviction, and the law applies to misdemeanors as well as felonies." [1] The term "accomplice," in its full meaning, includes all persons who have been concerned in the commission of a crime, all participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact. Bouvier's Dic. The earlier definitions substitute the term "felony" for the term "crime" as used above; and in the later definitions the terms "felony," "crime," and "offense" are used indifferently. Again, in Huffman v. State, 57 Tex. Cr. R. 399, 123 S. W. 596, Huffman was convicted for malicious mischief and fined $5 upon the testimony of White, who was a confessed actor and participant in the crime charged and equally guilty with Huffman. Article 781 of the Texas Code of Criminal Procedure of 1895 is the equivalent of section 241 of the Kentucky Code. In reversing the con [2] Under the common law it was not a rule of law, but of practice only, that a jury should not convict on the unsupported testimony of an accomplice; and, if a jury chose to act on such evidence only, the conviction could not be quashed as bad in law. Stephen's Dig. Ev. art. 121. The books lay it down as the better practice at common law for the judge to advise the jury to acquit, unless the testimony of the accomplice be corroborated, not only as to the circumstances of the offense, but as to the participation of the accused in the transaction; and, when several parties are charged, that it is not sufficient that the accomplice should be confirmed as to one or more of the pris-viction, the court said: "The evidence is oners to justify a conviction of those persons with respect to whom there is no confirmation. [3] But the provisions of sections 241 and 242, supra, change the common-law rule and are sufficiently broad to make the rule there laid down applicable to misdemeanors as well as to felonies. Section 5 of the Criminal Code provides that "public offenses are felonies and misdemeanors," while section 241, supra, requires the accomplice to be corroborated to connect the defendant with the commission of an "offense," and that the corroboration is not sufficient if it merely show that the "offense" was committed, and the circumstances thereof. It is clear, therefore, that the foregoing sections of the Criminal Code are sufficiently broad in their terms to include both felonies and misdemeanors, since both are public offenses. Furthermore, we are not without a precedent to sustain this conclusion. The question came squarely before the Supreme Court of Arkansas in State v. Davis, 38 Ark. 581, where Davis was indicted for winning a quart of whisky in a game insufficient to sustain the conviction. While See V. ute by the Supreme Court of Arkansas, we ally a defendant joined in with the plaintiffs case. BOWENS et al. v. BOWENS et al. (Court of Appeals of Kentucky. May 7, 1913.) that the consideration therefor was the agreement upon his part with his father to take care of and support his widow as long as she remained such, and the two infant children, who at the time of his father's death were aged, respectively, two and four years. He says that he did take care of the In an action against the son of a decedent, widow until she remarried, which, however, by the widow and the other children, to establish was only a few weeks after the death of his a trust in land conveyed by decedent shortly father; and he says that immediately after before his death, where the evidence showed his father's death he took both of said inthat the deed was recorded a month before decedent's death; that the son had supported fant children to his own home and has cared the two infant children since decedent's death for and maintained them ever since, and is and supported the widow during the few weeks still doing so. He also pleaded the five and between the death and her remarriage; that decedent told the draftsman of the deed that ten year statutes of limitation. the son would have to care for the widow and able evidence was taken, and the chancellor the infants and that for that reason he was below dismissed the plaintiffs' petition, thereconveying the land to him; and that plaintiffs by, in effect, holding that there was a valu. had acquiesced in his possession of the land for 10 years-it supported a finding that the land able consideration for the deed. was not conveyed in trust but in consideration The preponderance of the evidence, and of the son's agreement to support the infant the facts and circumstances, all support the children and the widow as long as she remain-finding of the chancellor; the recording of ed such. [Ed. Note.-For other cases, see Trusts, Cent. J. E. Bowens and another. From a judgment dismissing the petition, plaintiffs ap peal. Affirmed. Smith & Combs and J. D. Smith, all of Hindman, for appellants. Wootton & Morgan, of Hazard, and Jno. M. Baker, of Hindman, for appellees. TURNER, J. Joseph Bowens died in Sep- his chief concern was as to the care of his Consider the deed at least a month before the death of Joseph Bowens; the fact that J. E. Bowens took the two infant children and has kept them ever since; that he aided the wid ow during the short period of her widowof the deed at the time it was made that his hood; that the decedent told the draftsman son would have to take care of the widow and the two infants, and that for that reason he was conveying the land to him; and the fact that appellants acquiesced in his possession of the land for ten years before bringing this suit-all tend strongly to show that this was in fact the real consideration of the deed. Our view of the merits of this case makes it unnecessary to pass upon the question of limitation raised by the appellee. Judgment affirmed. WOODRUFF v. GOLDBACH. (Court of Appeals of Kentucky. May 8, 1913.) LASSING, J. The opinion rendered herein on April 24, 1913, remanded the case with directions to "overrule the demurrer to the petition." In giving this direction, reference was had to the cause of action stated against the defendant Nora Goldbach, only, as the petition had previously been held insufficient as to the county judge and members of the fiscal court. Said opinion is now corrected on its face, so as to show these facts. Ky. St. 2492, providing a lien for materials furnished for the construction of any railroad, etc., protects not only materialmen furnishing material to a contractor or his subcontractor, but one furnishing material to one taking his contract from a subcontractor. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 477, 486-504; Dec. Dig. § 159.*1 Appeal from Circuit Court, Laurel County. Action by the E. I. Du Pont De Nemours Powder Company against the Louisville & Nashville Railroad Company and the Edington-Griffitts Construction Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded. Tye & Siler, of Williamsburg, for appellant. Geo. G. Brock, of London, and J. W. Alcorn, of Stanford, for appellees. material whether such subcontractor took his contract from the original contractor or a subcontractor under him. Judgment reversed and cause remanded, with directions to the circuit court to overrule the demurrer to the petition, and for further proceedings consistent herewith. MADDEN v. MEEHAN.† (Court of Appeals of Kentucky. May 8, 1913.) [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 94-96; Dec. Dig. § 49.*] 2. FALSE IMPRISONMENT (§_7*) LIABILITY FOR OFFICIAL ACTS-DEFENSES - JUDICIAL PROCESS. A bench warrant issued on an indictment protected an officer arresting accused thereunder, although he was not guilty of the offense charged, and the prosecution was subsequently dismissed. [Ed. Note. For other cases, see False Imprisonment, Cent. Dig. §§ 5-61, 79; Dec. Dig. § 7.*] Af T. A. McDonald, of Louisville, for appel HOBSON, C. J. The Louisville & Nashville Railroad Company made a contract with the Edington-Griffitts Construction Company for the construction of a part of its Appeal from Circuit Court, Jefferson Counline of railway. That company subcontract- ty, Common Pleas Branch, Second Division. ed a part of the work to the Ryan-Battin Action by W. C. Madden against Pat MeeConstruction Company, who in turn subcon-han. From a judgment sustaining a demurtracted a part of the work to the W. F. rer to the petition, plaintiff appeals. Garretson Company, who bought of the E. firmed. I. Du Pont De Nemours Powder Company a lot of material and supplies for the work, lant. amounting to $2,988.30. The powder company, not having been paid for the material CARROLL, J. The appellant, Madden, as furnished for the work, duly filed its claim | plaintiff, brought this suit against the appelfor a lien in the county clerk's office, and lee, Meehan, a policeman in the city of Loubrought this suit against the railroad company to enforce its lien. The railroad company demurred to the petition. The court sustained the demurrer and dismissed the petition. The plaintiff appeals. isville, to recover damages for an alleged false arrest. A demurrer was sustained to the petition as amended, and the plaintiff declining to plead further the suit was dismissed, and he appeals. The second amended petition, as we learn from the brief of counsel for appellant, states the cause of action relied on. It is averred in this pleading, in substance, that Meehan, in September, 1908, while acting in the capacity of a policeman, arrested Madden on the charge of carrying concealed a deadly was tried in the police court and discharged. The ground upon which the demurrer was sustained is that the circuit court was of opinion that, under section 2492, Ky. St., the materialman who furnishes material to a subcontractor whose contract was made with a subcontractor, who had contracted with the original contractor, has no lien under the statute. In other words, the judg-weapon, for which alleged offense Madden ment is based upon the ground that the statute only protects materialmen who furnish material to a contractor or his subcontractor. There are authorities in other states sustaining this conclusion, but in the case of Grigsby v. L. & E. R. Co., 152 Ky. 164, 153 S. W. 232, decided since this case was heard in the circuit court, we held otherwise under our statute, and that opinion is conclusive here. We there held that any one furnishing material or supplies to a subcontractor in such work is entitled, under section 2492, Ky. St., to a lien, and it is im It is further averred that after this Meehan prevailed on the grand jury of Jefferson county to return an indictment against Madden for carrying concealed a deadly weapon, and that the offense charged in this indictment was the same offense for which Madden had been previously arrested and discharged in the police court; that a bench warrant was issued on this indictment against Madden, and he was arrested thereunder; and that Meehan prevented him from executing a bond for his appearance to an For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied June 13, 1913. three paragraphs of the petition demanded a swer the charge, and caused him to be placed | tains a judgment for $75 while each of the in jail, where he remained for several hours before he could execute a bond for his appearance. It is further averred that when the case came on for trial in the circuit court it was continued two or three times and finally dismissed. The lower court treated the pleading as a suit for malicious prosecution and sustained the demurrer, upon the ground that there was no averment of want of probable cause; but counsel for appellant insists that the suit was not brought to recover damages for a malicious prosecution, but to recover damages for the false arrest and imprisonment of Madden under the bench warrant issued on the indictment. [1, 2] It is quite difficult to ascertain from the pleading whether it was intended to charge malicious prosecution or false arrest and imprisonment. If it was intended to set out a cause of action for malicious prosecution, the petition was fatally defective in failing to aver want of probable cause. Roberts v. Thomas, 135 Ky. 63, 121 S. W. 961, 21 Ann. Cas. 456. If it was intended to set out a case of action for false arrest under the bench warrant, the petition was equally bad, as an action for false arrest will not lie against an officer who makes an arrest under a warrant issued by lawful authority, as the bench warrant in this case was. Johnson v. Scott, 134 Ky. 736, 121 S. W. 695. The fact that the prosecution under the indictment was dismissed does not affect the question. The grand jury returned an indictment against Madden for the offense charged, and, although, he may not have been guilty of the offense, a bench warrant issued under the indictment from the court in which the indictment was found protected an officer who might execute or attempt to execute it. The judgment is affirmed. PHOENIX HOTEL CO. v. COMMONWEALTH.† (Court of Appeals of Kentucky. May 1, 1913.) 1. APPEAL AND ERROR (8 46*)-APPELLATE JURISDICTION-JUDGMENTS IN PENAL AC TIONS. Under Cr. Code Prac. § 347, giving the Court of Appeals appellate jurisdiction in penal actions where the judgment exceeds $50, an appeal lies from a judgment for $75 in a penal action by the commonwealth, though section 11 provides that proceedings in such actions are regulated by the Code of Practice in civil actions, and though Ky. St. § 950, provides that no appeal shall be taken in a civil action where the judgment is less than $200. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 276-292; Dec. Dig. § 61.*] 3. GAME (§ 7*)—PROTECTION-STATUTES-CON STRUCTION. Ky. St. §§ 1939-1944, making it unlawful for any person within the state to catch or kill sion after it has been caught or killed, between enumerated game, or have the same in possesdesignated dates, make it unlawful within the state to catch or kill enumerated game or have the same in possession after it has been caught or killed, during the closed season, but do not make it unlawful to have game in possession during the closed season unless the same was caught or killed in the state. [Ed. Note.-For other cases, see Game, Cent. Dig. §§ 6, 7; Dec. Dig. § 7.*] 4. GAME (§ 4*)-PROTECTION-STATUTES-CON STRUCTION. 1904, c. 28), making it unlawful in the state at The purpose of Act March 24, 1904 (Laws any time to buy, sell, or expose for sale, or have in possession for sale, enumerated game which has been killed within the state, is to prevent the sale of the game at any time if killed in the state, but does not modify the prohibition in Ky. St. § 1951, imposing a penalty on any person selling enumerated game within the periods for which the taking or killduring the closed season, and which makes it ing thereof is prohibited, which applies only unlawful to expose for sale game in the closed season, whether killed within or, without the state. HOBSON, C. J. This is a penal action instituted by the commonwealth against the Phoenix Hotel Company, a corporation, of Lexington, Ky.; it being charged in the petition that the defendant in violation of section 1944, Ky. St., had in its possession three quail between the 1st of January and the 15th of November in the year 1912, there being three paragraphs to the petition, and Where the commonwealth, joining without a judgment being prayed in each paragraph objection several charges in a penal action, ob- for the sum of $25. The defendant by its [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 198-201; Dec. Dig. § 46.*] 2. APPEAL AND ERROR (§ 61*)-JUDGMENTS APPEALABLE-JUDGMENTS IN PENAL AC TIONS. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |