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yard; that these logs were worth, standing PHILLIPS v. BEATTYVILLE MINERAL & in the woods, at the time the appellee failed

TIMBER CO. and refused to measure up and pay for them,

(Court of Appeals of Kentucky. Sept. 21, 1905). not more than $2 per 1,000 feet; that he

1. TRESPASS-TITLE--EVIDENCE. could have cut and delivered the logs to the

One cannot maintain an action for tres

pass; he showing no title from tbe commonmillyard at a cost not to exceed $2.50 per wealth, but only a sheriff's deed on sale under 1,000 feet; that he would have realized execution against one not shown to have had profit of $3 per 1,000 feet on the 50,000 feet

title.

(Ed. Note.-For cases in point, see vol. 46, of "first-class oak logs, 20 inches and up,”

Cent. Dig. Trespass, $8 18, 19.] amounting to $150; that he would have rea

2. ADVERSE POSSESSION_INTERRUPTION-Evilized a profit of $.50 per 1,000 feet on the

DENCE. 150 feet of “common oak logs, 14 inches and Interruption of plaintiff's adverse possesup,” amounting to $75; and that by reason of

sion, so that it will date only from recomthe appellee's breach of his contract appel

mencement of possession, is shown; plaintiff,

while testifying that his tenant was on the lant has been damaged in the sum of $225, premises all the time after he went there, also for which he prays judgment. The contract stating that he thought he moved away, and is filed with and made a part of the petition,

the tenant, testifying for him, stating, that he

did move away after he had been on the premTo this pleading the appellee interposed a ises nine or ten years, that he was away two general demurrer, which was sustained by years, and that the place was vacant while he the court; and, the appellant declining to

was away, and this not being controverted by plead further, his petition was dismissed,

any other testimony.

[Ed. Note.For cases in point, see vol. 1, from which judgment he prosecutes this

Cent. Dig. Adverse Possession, $ 278.} appeal.

3. Same-DIFFERENT POSSESSIONS. We cannot agree to the contention of coun- One entering on a tract on which there are sel for the appellee that the contract under others claiming it as their own, and who so conconsideration is void because of its vagueness

tinue thereon, acquires no right by adverse posand uncertainty. It is true the description of session beyond his close.

[Ed. Note.-For cases in point, see vol. 1, the timber sold is somewhat loosely and va

Cent. Dig. Adverse Possession, 88 590, 591.) guely given as "a certain lot of timber situate on Rhodes Branch, about three miles from

Appeal from Circuit Court, Lee County. Williamsburg”'; but this was sufficiently def

"Not to be officially reported." inite and certain to enable the parties to ef

Action by T. J. Phillips against the Beattyfectuate it to the extent of 200,000 feet of

ville Mineral & Timber Company. Judgment timber, which was delivered by the appel

for defendant. Plaintiff appeals. Affirmed. lant and received by the appellee. The acts J. B. White, Gourley & Redwine, C. A. of the parties constitute a practical demon- Gourley, and J. K. Roberts, for appellant. stration that the descripion of the timber J. M. Beatty, and Beckner & Jouett, for comes within the maxim, “Id certum est, appellee. quod certum reddi potest.”

Nor do we think appellee's position is HOBSON, O. J. Appellant, T. J. Phillips, sound that under the terms of the contract instituted this action against the appellee, appellant was only bound to deliver 200,000 Beattyville Mineral & Timber Company, al. feet of timber, and appellee only bound to leging, in substance, that he was the owner receive that number of feet. The expression, and in the possession of a large body of land "said Bradford further agrees to deliver not on the waters of Contrary and Miller's creeks less than 200,000 feet of all classes of tim- in Lee county, and that the defendant had enber above specified,” does not fix the maxi- tered on the land and cut from it timber mum amount of timber to be delivered. On belonging to him of the value of $5,000. He the contrary, it clearly establishes the mini- alleged that he and those under whom he mum. It practically makes Bradford guar- claimed had been in adverse possession of anty that there was at least 200,000 feet of the land for more than 20 years next before timber on the boundary in question, to be cut the trespasses complained of. The suit was and delivered by him under the terms of the filed on February 26, 1897, and the trespassagreement. The contract is for the sale of all es were alleged to have been committed bethe timber of the given kind, quality, and tween the preceding June and that date. dimensions on the boundary contemplated

The defendant by its answer denied that by the parties. All of this timber appellant Phillips owned the land or was in the poswas bound to cut and deliver, and appellee session of it, or that he or those under whom was bound to receive and pay for it. This he claimed had held it in adverse possesbeing true, the petition states a good cause sion, but alleged that the land was in its of action, and the trial court erred in sus- possession and had been held by it and its taining the general demurrer to it.

vendors for 50 years in adverse possession, Wherefore the judgment is reversed, with It set up its title to the land, and pleaded in directions to overrule the demurrer.

bar of the action a judgment of the Lee cir

was

a

cuit court, rendered in a suit which Phillips live at that place before he finally moved had instituted against L. F. Mann, who had away? A. He moved away about two years entered under appellee and cut the timber or over. He was there all the time after he complained of. The affirmative allegations went there. He has been away for three of the answer were denied by a reply, and, / years, maybe; about three years. Q. You the case having been submitted to a jury, the said he moved there a year before the lease court at the conclusion of the plaintiff's

made? A. Yes, sir; maybe little evidence refused to instruct the jury peremp- more; a year anyhow. R. And when did he torily to find for the defendant. The defend- move away? A. About two years ago, or ant then introduced its evidence, and at its about three years. He was there, I know, conclusion the court peremptorily instructed a year before the lease, and I think he the jury to find for the defendant. The moved away.

It has been over two years. jury having found a verdict as directed by Q. At the time this timber was cut out the court, and judgment having been en- here, where did Warner live? A. On the tered upon it, the plaintiff appeals.

property in the same house. Q. Is that inThe only question we deem it necessary to side this lease? A. Yes, sir." consider is whether the plaintiff made out

The only other testimony is that of Warna case, that is, whether the court should

er, who was introduced on behalf of the plainhave peremptorily instructed the jury to tiff, and whose testimony was not sought find for the defendant at the conclusion of to be overthrown in any way. His testimony the plaintiff's evidence. The plaintiff showed is as follows: "Q. How long did you remain, no title to the land from the common- Mr. Warner, after you first went there in Ocwealth. The only evidence of title which tober, 1872, before you moved away? A. I he introduced was a sheriff's deed, made to don't reckon. Well, I never- I still hold it him on April 18, 1873, by E. B. Treadway, myself. Q. I don't want any explanations. as sheriff of Owsley county, from which How long did you stay there before you movit appears that in April, 1870, an execution

ed away? A. Nine or ten years, somewhere from the Madison circuit court against B.

along there, I stayed away. Q. Where did .F. Phillips, the father of T. J. Phillips,

you move to? A. (Didn't hear witness.) came to the hands of the sheriff and was Q. How long did you stay away? A. I staylevied by him on B. F. Phillips' undivided

ed away two years, I reckon. Q. And then interest in a survey of 29,000 acres, known where did you move to? A. I moved here to as the “Haggins Survey,” which undivided Miry Branch. Q. That was not on the land interest was said to contain 1,500 acres, and then? A. I had a tenant on the land. Q. that T. J. Phillips became the purchaser at I am not talking about your tenants. Where $234.21. The tract of land in controversy was it that you moved to? Was it on or off consists of about 5,000 acres, and no title of this lease? A. Off of this leased boundary. was shown in B. F. Phillips. The sheriff's Q. How far away from it? A. About two deed only passed such title as B. F. Phillips miles. Q. You moved back to Judge Phillips', had, and as the plaintiff, T. J. Phillips, here about the river ? A. Yes, sir. Q. Well, showed no title from the commonwealth, I will ask you if it is not a fact that, after he failed to establish any title to the land, you moved away, the house that you moved unless the proof offered by him to show ad- out of, if it was not vacant for two or three verse possession was sufficient to show an ad- years—nobody lived in it? A. It had a lock verse possession of 15 years. There was no on' it all the same. Q. Was not the door proof of adverse possession by B. F. Phillips, | open? A. Yes; it was broke open, and I at least none that need be considered. The found it. Q. And it was vacant three or four plaintiff introduced in evidence a lease made years? A. When I moved to it, the lock was by him on October 7, 1872, to Aaron Warner, broke open and gone. Q. How long, Mr. his brother-in-law which covered the land. Warner, had it been in that way-being vaHe testified that Aaron Warner was then cant, without anybody in it? A. I couldn't living on the land, and continued to live tell you.” on it, claiming it under the lease. The As Warner stayed there 9 or 10 years, and possession by Aaron Warner is the only pos- then moved back after 3 or 4 years, it is evisession which he showed to the land.

dent that he could not have moved back beOn this subject the testimony of T. J. fore something like 1884 or 1885. When he Phillips is as follows: "Q. How long did he moved away, and the place was left vacant, continue to live there under that lease? A. the continuity of possession was broken, and I don't know. Not more than one or two when he moved back the time of adverse posyears. Q. Now, during that time how did session must be counted from the date of his he claim? A. He claimed under me-under return. The trespasses complained of were my lease. Q. Did that lease cover the boun- committed in 1896, which was within less than dary where this timber was cut? A. Yes, 15 years after his return. While Phillips sir. (Court overruled objection of defendant does state that Warner was there all the time to reading of said lease, and lease read to after he went there, it will be observed that jury, to all of which defendant excepted.) he also states that he thinks he moved away, Q. About how many years did Mr. Warner and the explicit statement of Warner that he

did move away after he had been there 9 or 10 years, and that the place was vacant while he was away, is not controverted by any other testimony in the record. We regard the vague statement of Phillips as not suffcient to overthrow the testimony of his own witness, which is definite and certain and uncontroverted. In addition to this, B. F. Phillips only owned an interest in the 29,000acre survey. Those under whom appellee claims owned other interests in this survey. When a man without title enters upon the land of another, he acquires no right by adverse possession beyond his close against the true owner, unless the possession is then vacant. The plaintiff introduced no proof to show that the land was vacant when Warner entered or when Warner returned, and the proof introduced by the defendants, uncontradicted, showed that the defendant and those under whom it claims had tenants on the land, claiming it as their own, at the time he so entered. So, at most, under the evidence, any possession by Warner would be confined to his close. On the whole case, we are satisfied that the plaintiff showed no right to the land, and that the judgment dismissing his petition should not be disturbed.

Judgment affirmed.

was

DARRELL V. COMMONWEALTH (Court of Appeals of Kentucky. Sept. 22, 1905.) 1. CRIMINAL LAW-AFFIDAVITS FOR CONTINUANCE/ABSENCE OF WITNESSES — EFFECT AS EVIDENCE.

Where the court allowed the affidavit for a continuance of a criminal case to be read as the deposition of the absent witness, it was error to permit the commonwealth to prove that the absent witness had been dead for over a year, and that the statement that he would testify as alleged was false.

(Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $S 1364, 1365.] 2. RAPE-EVIDENCE-INSTRUCTIONS.

Where, on a trial for rape, there was no evidence of threats of violence by the accused toward the prosecutrix, except that immediately after the act accused told the prosecutrix that he would kill her father if she told him, an instruction that force necessary in rape need not be physical force applied to the person of the prosecutrix, but that force was used if she yielded through fear caused by threats of injury, was misleading.

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

Estill Darrell was convicted of rape, and appeals. Reversed.

See 82 S. W. 289.

Watkins & Birkhead, for appellant. N. B. Hays and C. H. Morris, for the Commonwealth,

ly, and a rule issued against the clerk to produce the lost indictment. It was found later in the day, and the case assigned for trial the following day. Appellant claims that all the witnesses had been discharged when it was discovered that the indictment was lost. But, however that was on the next day, when the case was called again for trial, appellant asked for a continuance on account of the absence of his witnesses. His afsdavit gave their names and stated that they all resided in Daviess county, Ky., about 18 miles from the courthouse. The attorney for the commonwealth consented that the affidavit might be read as the depositions of the absent witnesses, whereupon the trial was ordered to proceed; the defendant still protesting. One of his absent witnesses, the affidavit stated, would testify that, shortly before the date of the alleged rape, he had sexually known the prosecutrix with her consent, and that she was a woman whose reputation for chastity was then bad. After this affidavit had been read to the jury as the deposition of the absent witness, the commonwealth allowed to prove over appellant's objections that the absent witness was dead, and had been for more than a year. The Constitution, confirming the very spirit of our regard for human liberty, guaranties to every one accused of crime that he shall have compulsory process to procure the attendance of his witnesses; that his accusation shall not be tried upon one-sided evidence without his having an equal chance to produce the other side. To facilitate trials, while preserving this ancient and invaluable guaranty of process to the accused, it is provided that the court may, in its discretion, after the first term, allow the defendant's affidavit to be used as the deposition of his absent witnesses, where otherwise the presence of the witness could not be promptly had. When the affidavit is so admitted, its authenticity is beyond question in that trial. It must be accepted as if it were the duly signed and certified deposition of the identical witness named. It was error to have admitted evidence tending to show that the affidavit was false in its statement that the witness was there living within the jurisdiction of the court and would testify as stated.

There was no evidence of threats of violence by the accused towards the prosecutrix, or any one else, made in her presence before the criminal act. There was evidence, however, that immediately afterward, and before their separation, accused said to the prosecutrix, if she told her father, “he would kill him,” evidently meaning that accused would kill her father. This evidence was admitted to explain the silence of prosecutrix for some three months afterward. In instructing the jury the court said, in part: “The court further instructs the jury that force, as used in this instruction, does not

O’REAR, J. This appeal is prosecuted from a judgment convicting appellant of rape. When the case was called for trial the indict. ment had been misplaced and could not then be produced. The case was passed indefinite

mean exclusively physical force applied to from a judgment adjudging him insane the the person of the prosecutrix; but that force commonwealth appeals. Affirmed. was used, if the prosecutrix was made to

M. L. Galvin, N. B. Hays, Atty. Gen., and yield through fear caused by threats of

C. H. Morris, for the Commonwealth. violence and injury then made." The threats proven were not claimed by the prosecution HOBSON, C. J. Appellee was indicted for to have been made to induce her submission. the crime of malicious shooting with intent No threats of violence to her to coerce her to kill; and, an affidavit being filed by a physiwill were made before the act. In view of cian to the effect that he was of unsound the evidence, we think the language of mind, the court ordered a jury impaneled to the instruction was misleading, and preju- inquire as to his sanity under section 156 of dicial error. Undoubtedly it is the law the Criminal Code of Practice, which is as that, if the rapist coerces the female into follows: "If the court shall be of opinion yielding through fear caused by what he that there are reasonable grounds to believe threatens or does, her will is as completely that the defendant is insane, all proceedings subdued by force as if he violently took hold in the trial shall be postponed until a jury of her and held her against her will. The be empanelled to inquire whether the defenduse of the word "force" has reference solely ant is of unsound mind, and if the jury find to the will of the female. Though force was that he is of unsound mind, the court shall used, if she does not object, being conscious direct that he be kept in prison or conveyed of the act and purpose, or finally consent by the sheriff to the nearest lunatic asylum, without coercion, it is not criminal. If she and there kept in custody by the officers theredeclared "she'll ne'er consent, yet consenting," of until he be restored, when he shall be reno force or threats being used to override turned to the sheriff on demand, to be reconher own will, the act is not rape.

veyed by him to the jail of the county." The judgment must be reversed, and the The rule governing this proceeding is thus cause is remanded for another trial, under stated in Bishop on Criminal Procedure, $s proceedings not inconsistent herewith.

666-668:

“Sec. 666. Present insanity implies a disability to employ, control, or discharge coun

sel. And the doctrine is believed to be that, COMMONWEALTH v. WOELFEL.

when the court sees a reasonable ground to

Institute or persevere in this defense, it (Court of Appeals of Kentucky. Sept. 22, 1905.)

will take care that the prisoner has suitable 1. WITNESSES-HUSBAND AND WIFE-Com

counsel therein, whom it will not permit him PETENCY. On a trial under Cr. Code Prac. $ 156, on

to reject, restrain, or dismiss. An insane the issue of the sanity of one indicted for crime, man cannot even plead to an indictment. the wife of the accused is not a competent wit- Therefore, if, at the arraignment, counsel ness.

have reason to suppose their client too in[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, $ 124.]

sane properly to take his trial, they should 2. CRIMINAL LAW

make the objection. This, it is believed, can APPEAL HARMLESS ERROR.

be adequately done orally to the court. Or Where, on a trial under Cr. Code of Prac. the objection may proceed from a third $ 156, on the issue of the sanity of one indicted

person on affidavit. Or the court may take for crime, every fact testified to by the wife of the accused was shown by witnessess whose

it on its own observations. testimony was uncontroverted, the error in per- “Sec. 667. The time to which this inquiry mitting the wife to testify was not prejudicial.

relates is, it is perceived, the present—what [Ed. Note.--For cases in point, see vol. 15, Cent. Dig. Criminal Law, $ 3138.)

is the mental condition now, not what it 3. SAME-TRIAL OF DEFENDANT'S SANITY

was when the offense was committed. And TESTIMONY OF PHYSICIANS-COMPETENCY.

the test of insanity is not precisely the same On a trial under Cr. Code Prac. $ 156, on as on the main issue, but it is whether the the issue of the sanity of one indicted for crime,

prisoner is competent to make a rational physicians who had examined or treated the ac

defense. cused, or who had sufficient facts before them to make their opinion of any value, were com

“Sec. 668. The object of this inquiry bepetent witnesses.

ing, in the main, to inform the judge, it seems [Ed. Note.---For cases in point, see vol.14, that he need not limit the evidence by strict Cent. Dig. Criminal Law, § 1069.]

rules. The prisoner, for example, may be 4. SAJE TRIAL OF ISSUE OF DEFENDANT'S permitted to make statements and observa"SANITY. The inquiry on a trial under Cr. Code Prac.

tions to the court and the jury, and what $ 156, on the issue of the sanity of one indicted

the latter see and hear of him they may take for crime, is whether he is sane enough to ap- into the account. * * The jury's findpreciate his situation, to act advisedly in in- ing, on this preliminary question, that the forming his counsel, and to rationally conduct his case.

prisoner is not insane, is not to be received

as evidence against him on the trial of the Appeal from Circuit Court, Kenton County. main issue." “To be officially reported."

On the trial before the jury the court, over George Woelfel was indicted for crime, and the objection of the commonwealth, allowed

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stored to his mind may be tried for the offense charged against him.

Judgment affirmed.

the defendant's wife to testify in his behalf, and at the conclusion of the evidence on behalf of the defendant the court refused to allow the commonwealth to prove by three physicians that the defendant could on that day make a rational defense to the criminal charge against him. At the conclusion of the evidence the court instructed the jury that, if they believed from all the evidence that the defendant was a person of unsound mind at that time, they should so find, and refused instructions asked by the commonwealth to the effect that unsoundness of mind in a trial of this sort is that condition of mind where the defendant is incapable of remembering the past events of his life and presenting them to his counsel, or of appreciating what is going on about him, or of making a rational defense to the criminal charge against him. The jury found the defendant of unsound mind, and the commonwealth appeals.

A wife is not a competent witness for her husband, and, while the inquiry here is not limited by the strict rules of evidence, the result of it is to protect the defendant from trial and punishment if found of unsound mind, and his wife can no more testify for him on this issue than on any other. But every fact testified to by the wife was in effect proved by other witnesses, whose testimony was uncontroverted, and we do not see that the commonwealth was prejudiced by the admission of the wife as a witness.

The testimony of the three physicians offered on behalf of the commonwealth should have been admitted, if a proper foundation had been laid ; but it is not shown that they had ever examined or treated the defendant, or that they in any way had sufficient facts before them to make their opinion of any value to the jury. The jury had before them the conduct of the defendant, and he was also before them.

The rule in a proceeding of this kind is that the inquiry is whether the accused is sane enough to appreciate his situation, to act advisedly in informing his counsel, and to rationally and intelligently conduct his case, so as to secure him a fair and impartial trial. 1 Robinson on Criminal Law, p. 33; Carr on Trial of Lunatics, p. 92; Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216; Guagando v. State, 41 Tex. 626. The principle governing where the defendant's mind is diseased is not different from that where he is suffering from disease from some other organ. He must be in a condition to conduct his case rationally and intelligently, so that he may have a fair trial. The court should have instructed the jury as above indicated; but under all the evidence we have great doubt that the instruction, if given, would have affected the result.

Under the facts shown by the record we are satisfied that the ends of justice will not be promoted by a new trial. The defendant is in an insane asylum, and when he is re

McLEMORE et al. v. SEBREE COAL &

MINING CO. et al. (Court of Appeals of Kentucky. Sept. 22, 1905.) 1. DEATH BY WRONGFUL ACT-REFUSAL OF ADMINISTRATOR TO SUE-RIGHT OF WIDOW AND CHILDREN.

Where an administrator and one responsible for the negligent death of another conspire together to prevent a suit for the negligent death, the widow and children of decedent may sue, though Const. § 241, and Civ. Code, s 21, provide that an action for wrongful death shall be prosecuted by the personal representative for the benefit of the widow and children of the decedent, and though Ky. St. 1903, § 3882, authorizes the administrator to settle any claim for damages for a wrongful death; Civ. Code, $ 24, providing that, if the consent of one who should be joined as plaintiff cannot be obtained, he may be made defendant.

[Ed. Note.--For cases in point, see vol. 15, Cent. Dig. Death, $$ 35--46; vol. 22, Cent. Dig. Executors and Administrators, $ 1660.]

Appeal from Circuit Court, Webster County.

"To be officially reported."

Action by Nancy B. McLemore and others against the Sebree Coal & Mining Company and another. From a judgment dismissing the petition, plaintiffs appeal. Reversed.

R. L. Greene, Bourland & Hunt, Proctor & Herdman, and Jno. L. Dorsey, for appellants. C. W. Bennett, Barker & Barker, and Gordon, Gordon & Cox, for appellees.

SETTLE, J. This action was instituted in the Webster circuit court against appellee the Sebree Coal & Mining Company by the appellant Nancy B. McLemore, widow of Thomas J. McLemore, deceased, and their eight children (six of them infants, suing by their mother as next friend), to recover $25, 000 damages for the death of the husband and father from a fall in appellee's mine shaft, alleged in the petition to bave been caused by its gross negligence; the decedent being at the time an employé of appellee. In addition to stating a cause of action for the death of Thomas J. McLemore, the petition further avers in substance that after his death appellee R. L. Claxton was appointed, gave bond, and duly qualified as administrator of his estate; that his appointment and qualification as administrator were procured by appellee with the wrongful and fraudulent intent to protect itself from liability for damages for its negligence in causing the death of Thomas J. McLemore; that Claxton was at the time of his appointment and qualification, and is now, in the employment of appellee, and has entered into collusion with it to prevent suit against it for the death of the decedent, and has refused to sue appellee for his death, though requested by appellants to do so; that he also re

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