CRIMINAL LAW-Continued.

reversed and the case remanded with directions to set aside the
order of transfer, and to then transfer the case to some county
which was not objectionable, an order remanding the case to
the court whence it came, and a consent order by that court
transferring the case to another court, were a substantial com-
pliance with the opinion. Smith v. Commonwealth. ........ 19.
2. Ratification by Accused.-Defendant in a prosecution for homicide
can not complain of an order to transfer the case to another
circuit court, purporting to have been made by consent of his
counsel, upon the ground that he was not present when the
order was made, as he ratified the action of his counsel by failing
to make any objection on that ground until after trial and
verdict, though objecting on another ground. Idem. ........ 19
3. Only One Order of Removal.-Though Kentucky Statutes, section
1102, provides that there shall not be more than one order
of removal of the same cause at the instance of the same party,
came, in obedi-
the case, when remanded to the court whence
ence to the direction of the court of appeals, stood as if it had
19
never been removed, and the court then had power to make
another removal. Idem.
4. Harmless Error.-An instruction directing the jury if they should
find defendant guilty of manslaughter, "to fix his punishment
at confinement in the State penitentiary for not less than two
years or more than twenty-one years, in their discretion," was
19
not misleading, though the word "nor" should have been used
instead of "or." Idem.

5. Dying Declaration-Admissibility.-The mere fact that deceased,
at the time he made a statement as to the killing, expressed the
19
belief that he would not recover, was not sufficient to make it
admissible as his dying declaration. Idem.

6. Indictment-Failure to Endorse Names of Witnesses Thereon.-
An objection to an indictment upon the ground that no names
of witnesses were placed at the foot thereof must be made by
motion to quash, and not by demurrer. Commonwealth v.
.....217
Brewer.
7. Forgery-Existence of Instrument Uncertain.-An indictment does
not lie for the forgery of an instrument the existence of which
..217
is averred to be uncertain. Idem.
8. Making False Copy.-One who adds to a purported copy made by
him signatures which were not appended to the original is not
.....217
guilty of forgery. Idem.

9. Increased Penalty on Second Conviction-Sufficiency of Indict-
ment. Where an indictment for a felony charged that in a
certain court on a certain day, defendant was indicted for the

Criminal Law.

CRIMINAL LAW-Continued.

crime of maliciously shooting at and wounding another "with
inte," a felony punishable under the laws of the State of Ken-
tucky by confinement in the penitentiary, and that on a certain
day he was found guilty of that offense by the verdict of a jury
and his punishment fixed at confinement in the State peniten-
tiary for the term of five years, and that afterwards on a cer-
tain day judgment was rendered upon that verdict, and that
the verdict and judgment are still in force, the number and
style of the case being given, it sufficiently appeared from the
indictment that defendant had been previously convicted of a
felony, and the case in which the conviction took place was
sufficiently identified, though the full statutory name of the
offense was not given. Oliver v. Commonwealth. ..........228
10. Verdict As the court instructed the jury that they should fix
defendant's term of confinement at ten years only in the event
they found that he had been previously convicted of a felony
as charged in the indictment, a verdict finding "the defendant
guilty as charged in the indictment," and fixing "his punish-
ment at ten years in the penitentiary," was a sufficient finding
of the previous conviction to authorize the increased penalty.
though the statute provides that "judgment in such cases shall
not be given unless the jury shall find from the record
and other competent evidence the fact of former conviction
for felony." Idem...
.228
11. Stallion-Standing Without License-Indictment-Allegations.—
Under Kentucky Statutes, section 4201, providing for the punish-
ment of any person "who shall engage in any business" for
which a license is required before procuring a license, and pay-
ing the required tax thereon, an indictment for standing a
stud horse without license need not allege that defendant was
"engaged in the business" of standing a stud horse, a single
offense being sufficient to incur the penalty prescribed; nor is it
necessary to state the amount of property or money received
for the service, though section 4224 provides that the license
tax shall equal the greatest sum charged for the service of the
animal. Asher v. Commonwealth
...296
12. Same-Compensation.-There was a violation of the statute
though the only compensation defendant was to receive for the
service of the animal was the privilege of buying the colt, if
one, at a certain price, that option being a valuable one and
enforceable. But even though not enforceable, a contract for
compensation violates the statute. Idem.
.296

13. Embezzlement-Misappropriation of Taxes by Sheriff-Suffi-
ciency of Indictment-Allegation of Demand.-Under Kentucky

Criminal Law.

CRIMINAL LAW-Continued.

Statutes, section 1205, providing that if any person having
the control, custody or distinct possession of any money be-
longing to or for the use of any county, and under any trust
or duty "to keep, return, deliver, cancel, destroy or specifically
apply the same, or any part thereof, shall, in violation of such
trust or duty, willfully misapply, misappropriate, conceal, use,
loan or otherwise wrongfully and fraudulently dispose of such
money for his own purpose or use of another, with intent to de-
prive the owner or authority of the same, or of any part there-
of for the benefit of the wrongdoer cr of any other person," such
person shall be confined in the penitentiary, an indictment.
against a sheriff for embezzlement alleged to have been com-
mitted by misappropriating the county levy collected by him
need not allege that there had been a settlement with the de-
fendant or any demand upon or direction to him to pay over
the money in his hands. Commonwealth v. Fisher.
........491
14. Same-Commission.--An officer may be guilty of embezzlement,
though he was entitled to a commission out of the money col-
lected and used by him. Idem.

.492

15. Same-Repeal of Special Law Punishing Crime.-Constitution,
section 59, subsection 4, prohibiting the Legislature from pass-
ing local or special acts to regulate the punishment of crimes,
in conjunction with Kentucky Statutes, section 1202, providing
for the punishment of the offense of embezzlement by any
officer or agent of any bank, operated to repeal a bank charter
granted by special act of the Legislature prior to the adoption
of the Constitution, to the extent that it provided for the pun-
ishment of the offense of embezzlement of the bank's funds
by any of its officers or agents. Commonwealth v. Porter...575
16. Same.-As Kentucky Statutes, section 1202, provides for the
punishment of the offense of embezzlement by any officer or
agent of any bank, whether incorporated or unincorporated,
a bank cashier indicted for embezzlement can not complain
that the statute, in so far as it relates to the officers of insti-
tutions other than banks, discriminates against the officers of
incorporated institutions. Idem.
.....575

17. False Swearing-Sufficiency of Evidence.-To establish the of-
fense of false swearing, it is sufficient either that there
are two witnesses, or that the testimony of the one witness is
corroborated or sustained by other facts appearing in the case
or testified to by other witnesses; and the additional evidence
need not be such as alone would justify a conviction in a case
where the testimony of a single witness would suffice for that
purpose. Williams v. Commonwealth.
..$52

Criminal Law.

CRIMINAL LAW-Continued.
18. Drunkenness as Defense.-Under Kentucky Statutes, section
1174, providing for the punishment of any person who "shall
willfully and knowingly swear falsely," the accused is entitled
to an acquittal if at the time the false testimony was given,
he was so intoxicated from the use of cocaine or whisky as to
incapacitate him to understand the testimony he gave, or to
wilfully and knowingly swear falsely; and the court should
so instruct the jury where the evidence is sufficient to author-
ize such an instruction. Idem. ...

..652

19. Homicide-Degrees of the Offense-Verdict for Manslaughter -
As the common-law offense of manɛiaughter has been subdivided
by carving out of it the statutory crime of voluntary man-
slaughter, leaving involuntary manslaughter to be dealt with
as at common law, the term "manslaughter" is now a generic
term, covering two degrees of homicide; and therefore a verdict,
under an indictment for murder, finding defendant guilty of
manslaughter, finds him guilty of two offenses included in the
charge of murder, and so can not be construed as an acquittal
of all offenses included therein. Spriggs v. Commonwealth...724
20 Error in Instruction-Failure to Move for New Trial-Effect.-
An error in instructions, though it would have been sufficient
to entitle defendant to a new trial if he had made a motion
therefor, was not sufficient to entitle him to a discharge from
custody as acquit. Idem. ...
........724
21. Appeal-Necessity of Exceptions.-Under Cr. Code, section 340,
as amended by act of March 4, 1880, providing that "a judg-
ment of conviction shall be reversed for any error of law
appearing on the record, when, upon consideration of the whole
case, the court is satisfied that the substantial rights of the
defendant have been prejudiced thereby," there can in general
be no reversal for an error not excepted to, though apparent on
the record, and to the defendant's prejudice; but this rule
does not apply to instructions, for error in which there may
be a reversal though there was no exception, for the reason
that it is the duty of the court, though not requested to do so,
to give the whole law of the case in a criminal prosecution.
Buskles v. Commonwealth
...795
22. Safe Means of Escape.-It was error to instruct the jury that
there could be no acquittal on the ground of self-defense un-
less defendant had no safe means of escape. Idem.
....795

23. Arrest by Deputy Sheriff-Evidence of Deputy's Appointment.-
As the sheriff can not appoint a deputy without the approval
of the county court, such approval must be shown to make the
appointment valid, and it was therefore error in the absence

Criminal Law-Dentists.

CRIMINAL LAW-Continued.

of evidence of such approval to give an instruction assuming
that the deceased was a deputy sheriff, and had, the right to
arrest for disorderly conduct committed in his presence. Idem.796
24. Conspiracy to Defraud-Degrees of Offense.-Under Cr. Code,
sections 262-265, relating to offenses of different degrees, and
providing, among other things, that "if the proof show the de-
fendant to be guilty of a higher degree of the offense than is
charged in the indictment, the jury shall find him guilty of the
degree charged in the indictment," defendant was properly con-
victed of the offense of conspiracy to defraud, under an indict-
ment charging that offense, though the offense thus charged
is a misdemeanor, and the facts alleged showed that the acts
done pursuant to the conspiracy amounted to a conspiracy.
Wait, ete., v. Commonwealth. ...
.....821
25. Instruction to Jury.-The general statement in the instruction
to the jury that a conspiracy may be proved by testimony tha
it was actually entered into, or may be "inferred" by the jury
from the facts and circumstances in evidence, was not prejudi-
cial to defendant, as the jury were, in effect, directed by the
subsequent part of the instruction that they must believe be-
yond a reasonable doubt from the facts and circumstances in
evidence that a conspiracy existed. Idem. ....
.821
26. Evidence-Fraudulent Intent.-As defendants undertook, for a
stipulated sum, to run the bank, they were charged with con-
spiracy to defraud, and to keep the books, testimony as to
entries in the individual ledger kept by clerks under their
control, was admissible to show their fraudulent intent. Idem. 822

DENTISTS-

1. State Dental Association-Discretion of Board of Examiners-
Evidence of Genuineness of Diploma.-Under the various acts
defining the powers and duties of the State Dental Association,
the board of dental examiners is not vested with discretion to
refuse a certificate to an applicant who presents a diploma from
a dental college authorized by law to issue same, but the board
may refuse a certificate in the absence of proof that the diploma
is genuine or was issued by a dental college authorized by law
to do so. Smith v. State Board of Dental Examiners........212
2. Mandamus-Evidence to Support It.-A mandamus to compel
the State board of dental examiners to issue plaintiff a certificate
was properly refused where the paper purporting to be a dip-
loma was not signed by any one or attested by the seal of the
university in another State by which it purported to be issued,
and there was no evidence that plaintiff was a graduate of the