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Oliver v. Commonwealth.

day of February, A. D. 1893, was found guilty of said offense by the verdict of a jury duly impaneled in and sworn by said court to try said cause, and by the verdict of said jury his punishment was fixed at confinement in the State penitentiary for the term of five years; and afterwards, to-wit, on the 14th day of March, 189, the judgment of said court was rendered upon said verdiet, whereby said Oliver, alias Glass, was sentenced to confinement in the State penitentiary in the State of Kentucky at hard labor for a period of five years; which said verdict of the jury and judgment of said court aforesaid thereupon became and has ever since been in full force and effect, and has not been, and is not, vacated, modified, set aside, or appealed from, as will fully appear from the record of said case in the office of the clerk of said court and filed herewith, and numbered 15839, and styled the Commonwealth of Ken. tucy v. George Glass, alias George Johnson; and said George Glass, alias George Johnson, is the same person as the accused herein, George Oliver, alias George Glass, -contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Common. wealth of Kentucky.”

Section 122, Cr. Code Prac., requires an indictment to state the facts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and with such degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case. The previous conviction is sufficiently identi. fied to comply with this rule. The court, the time when the indictment was returned, the date of the trial and the date of the judgment, as well as the number of the action and its style, are particularly set out. This identified the

Oliver v. Commonwealth.

case in which the conviction took place, so that the defendant could not be misled. If we disregard entirely the words “with inte," we have left the statement that he was indicted for the crime of malicious shooting at and wounding another," and that he was convicted by the jury and sentenced by the court to confinement in the State penitentiary for a period of five years, and that the verdict and judgment are in full force and effect. By section 1127, Kentucky Statutes, offenses that are punishable with con.. finement in the penitentiary are felonies. Iỉ thus appears that appellant was convicted of a felony. Besides, the crime punished by section 1166, Kentucky Statutes, is frequently designated as malicious shooting or wounding, and such a designation would be sufficient to apprise the de. fendant of what was meant, when taken in connection with the other facts stated. The case of Herndon v. Com., 105 Ky., 197 (20 R., 1114) (48 S. W., 989) seems conclusive as to the sufficiency of the verdict. There this court said in a case like this: "The only other objection made that need be noticed relates to the form of the verdict. It is insisted that the verdict is not sufficient under the statute to sustain the judgment. The statute is as follows: “Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty unless the jury shall find, from record and other competent evidence, the fact of former convictions for felony committed by the prisoner in or out of this State. The court be. low instructed the jury that if they found the defendant guilty of malicious shooting they should fix his punish

Oliver V. Commonwealth.

ment at confinement in the penitentiary for not less than one nor more than five years, unless they also found that he had been twice previously convicted of felony, as alleged in the indictment; in which case, if they found him guilty, they should fix his punishment at confinement in the penitentiary for life. Under these instructions the jury returned this verdict: “We, the jury, find the defendant, Ben Herndon, guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for life.' It is insisted that under the statute the jury should find the fact of the former convictions, and that this verdict is not sufficient in this respect. But under the instructions of the court, the jury could not have found their verdict returned this verdict. We, the jury, find the defendant, ant guilty as charged in the indictment, and fixing his punishment at confinement in the penitentiary for life, was, in effect, under the intructions, a finding of the former convictions. The purpose of the statute was to guaranty to the defendant a trial by jury on this question, and this appellant has had. There was no doubt of the two previous convictions. Under the evidence the jury could not have found otherwise, and we do not think the defendant's substantial rights have been prejudiced.”

Judgment affirmed.

Board of Education of Covington v. Board of Trustees of Pub

lic Library of Said City.

CASE 34-AGREED CASE BETWEEN THE BOARD OF EduCATION OF THE

CITY OF COVINGTON AND THE BOARD OF TRUSTEES OF TIIE PU'BLIC
LIBRARY OF SAID CITY TO TEST THE VALIDITY OF CERTAIN ACTS
OF THE LEGISLATURE.—MAY 2.

Board of Education of Covington v. Board of Trustees of Public Library of said City.

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JUDGMENT FOR TRUSTEES OF PUBLIC LIBRARY AND BOARD OF EDUCATION

APPEALS. REVERSED.

TAXATION-CONSTITUTIONALITY OF STATUTE-APPROPRIATION TO OTHER

PURPOSES OF TAX LEVIED FOR SCHOOLS-PUBLIC LIBRARY NOT PART
OF SCHOOL SYSTEM.

Held: 1. Under Const. section 180, providing that every act of the

General Assembly and every ordinance levying a tax “shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose," a tax annually levied and collected by the general council of a city of the second class under Kentucky Statutes, section 3219 (part of an act for the government of cities of that class), by request of the board of education, upon a report made by it as to the needs of the public schools, and which tax, it is provided by the statute, shall not exceed a certain per cent. of the assessed valuation, and shall “be used for the benefit of the common schools and for the purpose of paying off the indebtedness of said board," is a tax levied and collected for school purposes; and the Legislature had no power, even by the statute imposing the tax, to provide that a part of it

should be devoted to another purpose. 2. A tax levied and collected by the common council of a city for

school purposes can not be appropriated by act of the Legisla. ture to maintain a public library which is open to the pupils of the common schools only as a part of the general public, and which is not under the control of the board of education or of the common schools.

W. A. BYRNE, FOR APPELLANT.

This is an agreed case between the parties hereto, to test the validity of two acts of the General Assembly of Kentucky,

Board of Education of Covington v. Board of Trustees of Pub

lic Library of Said City.

one amendatory of the other, one passed March 19, 1894 and the amending act passed March 15, 1898. The first act from the Kentucky Statutes of 1894 is section 3219, of the said Kentucky Statutes. and the amendatory act is from the Kentucky Statutes of 1899.

Appellant claims that appellees, trustees of the public library, can not have either the one per centum or the three per centum provided to be paid to the public library in section 3210 of the Kentucky Statutes, or any part of the taxes levied for the schools because:

1. Said money is part of the common school fund, so made by the Constitution and the statutes, and the use of it for any purpose other than the common schools, is prohibited by the Constitution and statutes.

2. The public library is not of the common school system and any aid to it would not be in aid of the common school system.

3. If it should be held that the portion of taxes in question are no part of the common school fund contemplated by the Constitution and laws of the States, then the acts in question appropriating the tax are unconstitutional, because they divert a tax raised for one purpose to a purpose other than that for which it was raised.

AUTHORITIES CITED.

Kentucky Statutes, secs. 3210, 3219, 3212, 3216, 3227, 4364, 4370, 4371, 4372; Constitution of Ky., secs. 184, 188, 180; Underwood v. Wood, 93 Ky., 179; Higgins v. Prater; Hill v. Hamilton, 91 Ky., 6; Collins v. Henderson, 11 Bush, 74; Halbert v. Sparks, 9 Bush, 259; Auditor V. Holland, 14 Bush, 147; Williamstown Graded School Dist. v. Webb, 89 Ky., 265.

H. C. THEISSEN, FOR APPELLEE.

The constitutionality of the act, now being considered, depends solely upon the question whether a library is so far connected with public education as to justify an expenditure of part of the school fund in aid of maintaining it. If a library has no connection at all with education, then the act appropriating three per cent. of the proceeds of the school levy is unconstitutional for the same reason that an act would be unconstitutional which should attempt to appropriate the three per cent. of the school fund in aid of street repairing. Such an act would be unconstitutional because forbidden by section 180 of the Constitution.

1. Our contention is that if in the opinion of the Kentucky

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