nuts, the appellant came into the restaurant [ ceased followed him out on the pavement and and shot him twice, without any words passing between them. Immediately Mr. Burton, one of the proprietors of the restaurant, and as soon as he could, grabbed the appellant, who still had his pistol in his hand, and the latter said, "This man has said enough for me to kill him." Burton asked for a surrender of the pistol, but appellant said to him, "No, I am not going to shoot any more." He then left the restaurant and went to the barber shop, about one square distant, and inquired if his nephew, a young Mr. York, was there, or had been there. He then came back to the restaurant with his pistol in his hand and requested that the police be telephoned for because he wanted to surrender. He was taken to the jail, where he has remained since. In explanation of this apparent premeditated murder, the appellant testified: That he had known the deceased as above stated. That he was the youngest of a family of 13 children, the most of whom were girls, and that he was very much attached to his brothers and sisters, particularly to the latter. asked him what he (appellant) thought of his (deceased's) chances to be promoted from fireman to engineer, in answer to which appellant said in substance, "I don't see why you wouldn't stand a good chance for promotion, since you have been a good fireman, and had experience as an engineer down at Bonds," and that upon the mention of the name "Bonds" the conversation turned to the subject as to when either of them had been up there, deceased saying that he had not been there for some time, but was intending to go soon; that there was a woman up there, Mrs. Dave York, that he wanted to see, and used language describing the cheapness of her virtue, saying that he had the price, etc., and used with reference to her such scurrilous and slanderous language that we will not here incorporate it, whereupon the defendant replied, "You are a damn liar, you are drunk," when the deceased said, "Go home," and turned and went into the restaurant. Appellant said that he became so enraged that he did not remember what happened after that until he fired the second shot, but he went almost immediately thereafter into the restaurant and committed the homicide. His explanation of his conduct is that he was so shocked and enraged at the accusation against his sister by the deceased after what had occurred some years before that he lost consciousness, and his attorneys insist that this, coupled with his partially intoxicated condition, produced emotional insanity sufficient to excuse him from the guilty consequences of his deed. While some few witnesses, who are shown not to be on the best terms with appellant, testified to his bad character for peace and order, the greater weight of the testimony is that he was both peaceable and orderly in his association with his fellows; that he was industrious and energetic; that he possessed an excitable nature, was very much attached to his sisters, and would naturally become angry when their reputations were assailed. That about four years prior to the homicide the deceased had worked as an engineer at the plant of the Bond Lumber Company at Bonds, Ky., in the neighborhood of which the appellant, his brothers and sisters, were born and reared. One of his sisters married a man by the name of Dave York, and he says that some three or four years prior to the homicide the deceased got into a conversation with him in which the former asked him if he knew Mrs. Dave York, and the deceased stated that she was running a disorderly house at Bonds, and in substance that she was unchaste and without virtue, using in the conversation, as testified to by appellant, language which we will not copy in this opinion. The appellant says that he did not then state to the deceased that Mrs. York was his sister, because he was somewhat wrought up and he thought it would be necessarily embarrassing, but he denied the charge and asserted In support of his motion for a new trial that Mrs. York was a virtuous woman and upon the ground of newly discovered evihe could prove it. He afterward got affida- dence, appellant filed the affidavits of Thomvits denying the charges made by deceased, as Gregory and J. B. Barrett, both of whom including one from the man with whom were unacquainted with either the appellant he particularly charged Mrs. York with or deceased, and in which affidavits they being familiar, and brought that informa- state in substance that they were both in the tion to the knowledge of the deceased, who, city of Paris on the day in question, and that according to the appellant, accepted it as they were on their way to the depot, when, true, and there was never afterward any- between 6 and 7 o'clock, they passed the thing said between the parties concerning restaurant in question and saw two men the matter until a few minutes or seconds standing in front of it near a telephone pole, preceding the shooting. He said that he en- and that in passing they heard the substance tertained no malice nor any unkind feeling of the conversation testified to by appellant toward the deceased until the conversation as having occurred between him and the deimmediately preceding the killing, which ceased just in front of the restaurant, with conversation was to this effect: That he reference to Mrs. York. The two affiants, walked out of the restaurant intending to after getting to the depot, and before the telephone his boarding house that he perhaps arrival of the train upon which they expect (222 S.W.) town; but they did not connect it with the convicted for killing a man by the name of conversation they had heard, and went Wills. The shooting occurred near the depot, away. With these affidavits there was also and when it was practically dark. The son filed that of the appellant, as well as one by of deceased had been arrested by officers for his attorney in which it appears that appel- some misdemeanor, and the father was maklant had stated to his attorney that persons ing demonstrations to take him away from passed on the pavement at the time of that the officers, when the defendant Crouch, acconversation, but that appellant did not know cording to his testimony, asked the deceased any of them, and the attorney had made a to stay back and not interfere with the officers number of visits to surrounding towns and who arrested the boy, .when the deceased had exercised extraordinary diligence to dis- cursed and drew a pistol and was about to cover some one who might have passed and fire when defendant shot him. After the heard the whole or a part of that conversa- trial he discovered a witness by the name of tion, but without avail. Ferguson, who it seems was a prospective passenger waiting for the train and was standing close enough to see what occurred, and his affidavit corroborated the testimony of the defendant Crouch. A new trial was sought, and among the grounds relied on was the newly discovered testimony of Ferguson. There was no question of want of diligence in that case, as there is none in this case; but the judgment of conviction was reversed solely upon the ground of newly discovered testimony, although it was in its nature cumulative to that given by the defendant. The court in commenting upon the newly discovered testimony, its nature, materiality, and probable effect, said: After appellant was convicted, he addressed a pamphlet to the public in which he depicted his unfortunate situation and appealed for sympathy, as well as financial aid in prosecuting his defense, and one of these pamphlets seems to have come to the notice of Thomas Gregory, and from the statements made in it Gregory said that he became convinced that the conversation which he and Barrett heard in front of the restaurant was the one mentioned by appellant, and he afterwards divulged it, and in that manner his and Barrett's testimony was discovered, and all of which occurred after the trial. So that there neither can be nor is there any complaint concerning the question of diligence in the discovery of that testimony. The only questions are: Is it relevant and material, and, if so, is it to be rejected because it might be considered cumulative? [1, 2] As a general proposition, courts are somewhat reluctant to grant a new trial upon this ground, because it is one which opens a ready door, not only for the commission of perjury, but for the perpetration of fraud by the party relying upon it. Notwithstanding, however, such reluctance, the courts will unhesitatingly grant a new trial for newly discovered evidence, when on account of its materiality and probable effect a manifest injustice would be committed to disallow it, and it may also here be stated that while this court, as well as others, announce and apply the general rule that a new trial will not be granted for newly discovered evidence which is cumulative only, still that rule is not of universal application, and where the newly discovered evidence, although to some extent cumulative in its nature, is of so controlling a character as that it would possibly change the verdict, it would be prejudicial error to refuse a new trial based on this ground. For authorities sustaining these general propositions, we refer to 16 Corpus Juris, 1191-1201; 20 R. C. L. 289, 296, 297; Gravitt v. Commonwealth, 184 Ky. 429, 212 S. W. 430; Crouch v. Commonwealth, 172 Ky. 463, 189 S. W. 698; C., N. O. & T. P. Ry. Co. v. Cecil, 164 Ky. 377, 175 S. W. 654; and other Kentucky cases cited in the notes of the publications referred to. "The testimony, which Ferguson proposes to give, bears upon the decisive facts of the homicide and from them the guilt or innocence of appellant can be most certainly determined. It is not cumulative or for the purpose of impeaching any witness, who testified upon the trial, with the exception of Freeman Wills, detrial. The witnesses who testified upon the posed that they either did not or could not, at the time the mortal wounds were given, see the appellant and the deceased, and it is reasonable to conclude that other persons, if any there were, who may have been about the depot, did not and could not see what transpired. The testimony of Ferguson will strongly corroborate that of appellant." the case of Torain v. Terrell, 122 Ky. 745, 93 S. W. 10, said: In the Cecil Case, this court, quoting from For "The rule that newly discovered evidence which is merely cumulative is not ground for instance, the rule does not apply if the newly a new trial allows of some exceptions. discovered evidence, though cumulative, is sufficient to render clear that which was before a doubtful case, or if it is of a conclusive or decisive character, or of so controlling a character it would probably change the verdict. * Applications for new trials are addressed to the sound discretion of the court, to be exercised according to the rules and usages of law, and the court should regard the substantial justice of the case, equally remote from favoring negligence or exacting unreasonable diligence." To the same effect are the cases of I. C. R. R. Co. v. Wilson, 103 S. W. 364, 31 Ky. Law Rep. 789; Adams Oil Co. v. Stout, 41 S. W. The defendant in the Crouch Case was 563, 19 Ky. Law Rep. 758; Johnson v. Stiv ers, 95 Ky. 128, 23 S. W. 957, 15 Ky. Law [acted under sudden heat and passion, which, Rep. 477; Berberich v. Louisville Bridge Co., if true, would reduce his offense to that of 46 S. W. 691, 20 Ky. Law Rep. 467; and voluntary manslaughter. Out of the frailties Owsley v. Owsley, 77 S. W. 397, 25 Ky. Law of our nature grows the distinction between Rep. 1186. the two grades of homicide, which distinction, from the dictates of reason and justice, has long been recognized and established as a part of the criminal law. Without further discussion, we conclude that a new trial should have been granted on this ground. [5] Much evidence in the way of affidavits character of the affiants Gregory and Barrett, and we might say that it was about equal in volume and weight; but whether their testimony is or not credible will be a question for the jury upon another trial, and not one for us to determine at this time. [3] If the newly discovered testimony is material upon any vital issue in the case, and it is otherwise admissible, the fact that it is not directed to the establishment of the defendant's innocence of all crime will not cure the error in refusing to sustain the motion for a new trial therefor if the new-was introduced by both sides touching the ly discovered evidence is directed to an issue which, if established, would reduce the degree of the crime as well as lessen the punishment inflicted. The question of supreme interest to a defendant in a criminal prosecution is, first, to establish his innocence of any crime, but, if he should be unable to do that, he is next interested in reducing his offense to the lowest one for which he could be convicted under the indictment, and in capital cases the one is about of as much importance to him as the other. Thus, in 16 Corpus Juris, 1208, the text says: [6] To sustain ground 2 urged for a reversal, the bill of evidence shows a number of remarks made by the commonwealth's attorney in his closing argument to the jury, of which complaint is made; but the only one we deem necessary to notice is that one charging defendant with being a "bootlegger." He also charged appellant with being a "pistol toter," and there was some "Where newly discovered evidence will probably change the result to a verdict more favorable to defendant, a new trial should be grant-evidence introduced to establish his reputaed." Crouch v. Commonwealth, supra, and Brooks v. Commonwealth, 144 Ky. 107, 137 S. W. 867. In the same volume of Corpus Juris, on page 1209, in speaking of the rule with reference to capital cases, it is said: tion for that offense. This, however, was given by witnesses who were not on friendly terms with him. He admitted having the pistol on the occasion complained of, but explains that in finishing his run, which was Paris, on the evening before, he left his pistol in his overcoat pocket, and which he "In a capital case even a grave doubt created carried for the purpose of protecting himby the newly discovered evidence may, in the self in going from the railroad yards to his interest of justice, require a new trial. Where boarding house against waylayers and robthe new evidence is not alone sufficient to re-bers with which the community was infested quire a new trial, nevertheless it may be considered in connection with other errors and irregularities on the trial as bearing on a defendant's right to a new trial." [4] Whether the effect of the conversation immediately preceding the killing testified to by appellant alone, but which he seeks to corroborate by the discovered witnesses, would be sufficient to authorize a verdict of acquittal, is a question with which we are not concerned; it being exclusively for the determination of the jury. But can we say that the establishment of that conversation would not affect the verdict in either reducing the severity of the punishment or the degree of guilt? Manifestly not. To do so would plainly ignore our knowledge of human nature obtained from observation and experience. That knowledge teaches us that the conversation with reference to appellant's sister, if it occurred in the manner and at the time testified to by him, would have a tendency at least to provoke and anger the deceased to such an extent as to authorize the jury to find that he did not commit the deed with which he is charged with that degree of maliciousness and premeditation essential to the crime of murder, but that, on the contrary, he at that time. It is doubtful whether it is competent to prove one's reputation for a specific offense; but, waiving that, we are convinced that there was absolutely no testimony in the record, direct or circumstantial, supporting the charge made by the commonwealth's attorney that appellant was a bootlegger. This court has time and again prescribed the limits within which counsel in their argument to the jury should be confined, and the general rule gathered from all the cases is that the proper bounds are overstepped when counsel goes outside of the record for the purpose of abusing and vilifying the opposing client and transgresses his rights and duties when he accuses such client of being guilty of a degrading offense to support which there is no testimony of any character in the record. Some of the cases from this court dealing with this question are Gilbert v. Commonwealth, 106 Ky. 919, 51 S. W. 804, 21 Ky. Law Rep. 544; Wilson v. Commonwealth, 54 S. W. 946, 21 Ky. Law Rep. 1333; Allen v. Commonwealth, 145 Ky. 409, 140 S. W. 527; Slaughter v. Commonwealth, 149 Ky. 5, 147 S. W. 751; Turpin v. Commonwealth, 140 Ky. 294, 130 S. W. 1086, 30 L. R. A. (N. S.) 794, 140 Am. (222 S.W.) contract. St. Rep. 378; Howerton v. Commonwealth, | kers were entitled to their commission, even 129 Ky. 482, 112 S. W. 606, 33 Ky. Law Rep. though the parties, through the fault of one or 1008; Rhodes v. Commonwealth, 107 Ky. the other, afterwards refused to carry out the 534, 54 S. W. 170, 21 Ky. Law Rep. 1070, 92 Am. St. Rep. 360; Stroud v. Commonwealth, 160 Ky. 503, 169 S. W. 1021; and Stearns Coal & Lbr. Co. v. Williams, 177 Ky. 698, 198 S. W. 54. 2. Appeal and error 1033(6)—Refusal to instruct harmless, where given instruction was more favorable. Where the given instruction is more favorable to the defendant than the one requested, appellant cannot complain that the request was refused. 3. New trial 42(4)-Remote relationship of party to juror not ground. Court did not err in denying a new trial on the ground that one juror was a second cousin to the wife of one of the prevailing parties and to the mother of another prevailing party, where it was shown that there was an estrangement between the families, and that one of the prevailing parties had never been in the juror's home, and the other had been there only once in 20 years. Appeal from Circuit Court, Shelby County. Action by Hart Wallace & Co. against F. M. Casey. Judgment for plaintiffs, and defendant appeals. Affirmed. [7] The general tenor of all the cases cited, and others which might be, is that an attorney in his argument has no right to go outside of the record for the purpose of influencing the passions or prejudices of the jury, nor has he the right to assert as a material fact that which the testimony does not support, or which asserted fact is not to be deduced from other facts or circumstances proven, especially so if the statement consists in the unsupported charge that the one referred to is guilty of an independent offense calculated to render him obnoxious to the jury. It is a fact of which we may take judicial notice that the term "bootlegger" refers to one who engages in the unlawful sale of intoxicating liquors. We likewise know that in some communities, and with some people, scarcely any more opprobrious epithet could be applied to one than to call him a "bootlegger." In such communities and before such people it is not difficult to see that the accusation would be calculated to cause the jury to regard the defendant with contempt and prejudice and to cause them to render a verdict against him which they might not otherwise do. At any rate, it is impossible for us to say that such a charge would not so affect the verdict of the jury. It is sufficient for the purpose that the charge might produce upon the minds of the jury such adverse effect, and the objection to the statement should have been sustained and the jury admonished to not regard it. The court should have at least done this much, there having been no motion to discharge the jury and continueing that he would see about the balance of the case. What has been said renders it unnecessary to discuss or determine the questions relied on by ground 3. E. B. Beard and George L. Pickett, of CLAY, C. F. M. Casey owned a farm in Shelby county, which he placed in the hands of Hart Wallace & Co. for sale at the price of $165 an acre. The agents showed the farm to R. S. and J. A. Scobee, who thereupon entered into a written contract with Casey and wife for the purchase of the farm. The agents claimed that the agreed commission was 5 per cent. on the first $10,000 and 3 per cent. on the balance of the purchase price. When the trade was consummated, Casey gave the agents a check for $500, say the commission. The check was lost, but the agents say that it showed that the agreed commission was as claimed by the agents, and that the $500 was a payment on account. For the reasons stated, the judgment is Casey says that the $500 payment was made reversed, with directions to grant the de-on condition that it would be returned if the fendant a new trial, and for proceedings consistent with this opinion. CASEY V. HART WALLACE & CO. (Court of Appeals of Kentucky. June 8, 1920.) 1. Brokers 60-Entitled to commission on obtaining binding contract which party refused to carry out. Where customer was presented by brokers, and was accepted by landowner, and parties executed a valid and enforceable contract, bro Scobees did not take the farm. After the [1] The point is made that defendant's motion for a peremptory instruction should have been sustained, because the sale was never For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Since instruction No. 1 authorized a find mission was 5 per cent. on the first $10,000 of the purchase price and 3 per cent. on the balance, the necessary effect of the instruction was to require a finding for defendant in every other case. That being true, the given instruction not only included the defense presented by the offered instruction, but was much more favorable to the defendant, since, if the commission had not been agreed on, there might have been finding for plaintiffs under the offered instruction, but not under the given instruction. consummated. In support of this position it [ agreed on, then they should find for plaintiff is argued that plaintiffs were not entitled to such a sum as would reasonably compensate a commission until they produced a customer | plaintiff for his services." ready, able, and willing to take and pay for the property, which they failed to do. This contention overlooks the rule that a real ing for plaintiffs only in the event the jury beestate broker may earn his commission, ei-lieved from the evidence that the agreed comther by producing a person who is not only then, but at all times, ready, able, and willing to purchase the property on the prescribed terms, or by obtaining from the customer a binding contract which the landowner himself may enforce, in case of a breach or default in its terms. 4 R. C. L. p. 307; Randle v. Bloomfield, 146 Ky. 421, 142 S. W. 677; Coleman's Ex'r v. Meade, 13 Bush, 358; Watters v. Dancey, 23 S. D. 481, 122 N. W. 430, 139 Am. St. Rep. 1071. Here the customers presented by plaintiffs were accepted by defendant, and the parties executed a valid and enforceable contract. That being true, plaintiffs were entitled to their commission, even though the parties, through the fault of one or the other, after wards refused to carry out the trade. 4 R. C. L. p. 310; Moore v. Irwin, 89 Ark. 289, 116 S. W. 662, 20 L. R. A. (N. S.) 1168, 131 Am. St. Rep. 97; Richardson v. Olanthe Milling Elevator Co., 167 Ala. 411, 52 South. 659, 140 Am. St. Rep. 45. It follows that the court did not err in refusing the peremptory asked for by defendant. It being immaterial whether the failure to consummate the trade was due to the fault of defendant, or to the Scobees, the court did not err in refusing to permit defendant to tell what took place between him and the Scobees with reference to their refusal to accept the deed. Only two instructions were given to the jury. In instruction No. 1, the only question submitted was whether the agreed commission was 5 per cent. on the first $10,000 of the purchase price and 3 per cent. on the balance of the purchase price. The jury were told that, if they so believed from the evidence, they should find for plaintiffs, but, unless they so believed they should find for defendant. The second instruction submitted to the jury the question whether plaintiffs agreed with the defendant, at the time the defendant delivered the check for $500, that if the purchaser did not take the farm they would return the $500 to him. Instruction No. 1 is attacked on the ground that it assumed that plaintiffs had earned their commission. For the reasons given above, there was no error in this. [2] Another contention is that the court erred in refusing to give the following in struction: "If the jury believe from the evidence that plaintiff agreed to sell the farm of defendant at $165 per acre, and no specified commission was [3] Another ground urged for reversal is the relationship of one of the jurors to plaintiffs. It appears that the wife of one of the jurors was a second cousin to the wife of one of the plaintiffs and to the mother of another plaintiff. It was shown, however, that there was an estrangement between th families, and that one of the plaintiffs had never been in the juror's home, and the other had been there only once in 20 years. In view of these circumstances, and the remoteness of the relationship, we conclude that the court did not err in refusing defendant a new trial because of such relationship. Judgment affirmed. REED et al. v. ROSE, Judge, (Court of Appeals of Kentucky. June 15, 1920.) Courts 74-Circuit court will not divide its time between county seat and third-class city not wholly within the county. The circuit court of the county of Whitley will not divide its time between the city of Corbin and the county seat, though Corbin is a city of the third class; notwithstanding Ky. St. § 963d, requiring circuit court of counties having a city of third class to divide its time between such city and county seat; such statthe third class is entirely within the borders ute being applicable only where the city of of the county, and the city of Corbin not being wholly within Whitley county. Prohibition by M. D. Reed and others against R. S. Rose, Judge, to prohibit defendant from holding any part of the Whitley county circuit court in the city of Corbin. Writ made permanent, and defendant permanently enjoined from holding any terms or parts of terms of the Whitley circuit court in the city of Corbin. |