but ap

(222 S.W.) a verdict in favor of Williams and his wife going to and from their home and farm for the sum of $2,800 direct damages. The across the river to their other lands, as well railroad companies are prosecuting this ap- as to the public highway leading to the counpeal and ask a reversal upon three grounds: ty seat. The railroad companies admitted

(1) Appellees were allowed to recover dam- that the Williams were the owners of the ages for the obstruction of a private passway, land in question, but they denied the treswhich was not located entirely upon their pass, as well as all damages resulting thereown lands, but partly upon their lands and from, and relied upon their right under the partly upon the lands of another, while “the option given by Hiram Williams as a justiobstruction complained of," if there was an fication for entering upon the lands. At the obstruction, was near the end of the pass-trial the railroad companies offered to conway and on the lands of a third person. fess judgment for $50 for appropriating the

(2) The verdict is grossly excessive. 1.4 acres of land taken and used by them as

(3) The court gave to the jury erroneous a right of way, and $1,200 for damages to
Instructions. It will be seen, however, that the adjacent, property, or a total of $1,250,
the chief, if not the only, error complained and tendered said sum to the plaintiffs for
of by appellant is the failure of the trial | the taking of said property and for all dam-
court to admonish the jury at the conclusion ages incident thereto. This the appellees
of all the testimony not to consider evidence rejected.
offered by appellees as to loss suffered by [1, 2] Appellees alleged ownership in them-
them by reason of the obstruction of the selves of the lands in controversy and this
private passway.

was admitted by the railroad companies.
This litigation started almost ten years ago. Appellees also alleged that they had used
In 1910 the railroad companies obtained and enjoyed a passway from their home and
from one of the appellees, Hiram Williams, farm across the river to their other lands
a written option of a right to appropriate a and to the highway, and this was not contro-
strip of land 100 feet wide through his farm, verted. In the taking of proof, appellees
for the purpose of building a railroad. Mrs. started in to establish their tit
Williams did not sign this contract, al- pellants, to save time, admitted that the
though she was the owner of an undivided plaintiffs were the owners of the lands, and
one-half interest in the farm. The railroad this was noted of record. The first witness
companies started construction work, to introduced, after telling about the obstruc-
which Williams objected, and was threaten- tion of the channel of the river by the em-
ing to eject the workmen, when the railroad bankment of the railroad, told also of the
companies instituted an action praying an obstruction of the passway by the railroad
Injunction against Williams, staying him embankment. No objection was made to
from interfering with their construction this evidence by appellants. Other witnesses
work. There was an injunction granted, but gave similar evidence without objection, but
it was shortly thereafter dissolved on motion at the conclusion of all the evidence the ap-
of Williams; in the meantime the railroad pellants moved for a peremptory instruction
companies had instituted another action in their favor as to the damages for “the
against Williams for specific performance of alleged destruction of the passway in con-
his option contract, and this latter action is troversy" upon two grounds: (1) Because
the one in which the opinion supra was ren- | the appellees had not shown that they owned
dered. While these two actions were pend- the passway; (2) because the pleading did
ing, Mrs. Williams instituted another action not make any claim for damages upon that
in her separate name, claiming to be the ex- ground. This motion was overruled by the
clusive owner of the tract of land and seek court, and we think properly so, because in
ing damages against the railroad companies the first place it was not necessary for ap-
for trespassing upon her property and appro- pellees to have alleged or shown title in
priating a portion thereof. By special de-themselves to the passway in order to entitle
murrer the question of defect of parties plain- | them to prove that it had been obstructed
tiff was raised, and the court required Mrs. by the railroad companies as an element of ,
Williams to make her husband a party, which damages. Whether they had a deed to it or
was done. In this action Mrs. Williams and not made little difference, if they had the
her husband averred that the railroad com- right to use it. Furthermore, it was not
panies had appropriated a strip of their necessary to set forth in the pleadings that
land as a right of way and had entered there- damages would be claimed for the obstruc-
on and constructed a railroad, which con- tion of a passway used in connection with
struction had in part filled up the channel the lands, because that is a mere incident to
of the Kentucky river, which ran immedi- the enjoyment of the premises, and evidence
ately in front of their residence, thereby of the obstruction or destruction of the pass-
flooding their farm at intervals and washing way was admissible under a general averment
away their lands; and, further, that the of incidental damages to the land from the
embankment of the recently constructed rail- taking of the strip for right of way. The
road obstructed and rendered of no practical second ground relied upon by appellants for
use a certain passway used by plaintiffs in peremptory instructions was equally without

merit. The pleadings do sustain the claim 5. Intoxicating liquors w 238(4)– Whether de. for appellees to damages on account of the fendant had liquors in possession for sale passway even by specifie averment, but had

held for jury. there been no such averment appellees could

In a prosecution for having intoxicating have shown that they suffered damages by liquors in possession for the purpose of sale, reason of the obstruction of the passway tent a question for the jury.

evidence held sufficient to make defendant's inwhich was appurtenant to their freehold.

The other two grounds urged for reversal 6. Criminal law Ow376--Reputation of accused are rested upon the one we have just disposed

admissible only where defendant offers proof of, and, the first one being without merit,

thereof. the other two are rendered unavailing, for

Testimony as to the reputation of accused it is practically admitted by appellants that proof of his good reputation, or where he has

is admissible only where accused has offered the damages are not excessive if the obstruc-offered himself as a witness. tion to the right of way could have properly been considered; and, further,, that the in

Appeal from Circuit Court, Hardin County. structions are not erroneous if the evidence concerning the obstruction of the passway

William Owens was convicted of having was properly admitted. TI right of ap- intoxicating liquors in his possession for the pellees to recover not only for taking of the purpose of sale, and appeals. Reversed and 1.4 acres of land as a right of way but for remanded. all damages to the remainder of the farm,

H. L. James, of Elizabethtown, for appelwhich directly flowed from such taking, was lant. fully recognized and established by the opin

Chas. I. Dawson, Atty. Gen., for the Comion on the first appeal.

monwealth. Judgment is affirmed.

(222 S.W.) taining the grounds relied on, and in support | mons, 100 Ky. 164, 37 S. W. 949, 18 Ky. Law of this position we are referred to the case Rep. 648. Section 281 was enacted after the of Carter v. Texas, 177 U. S. 442, 20 Sup. repeal of the former statute disqualifying perCt. 687, 44 L. Ed. 839Precisely the same

sons of the colored race for jury service. It question was raised in the case of Miller does not in the meaning or effect discriminate

against persons of any race or color, and its F. Commonwealth, 127 Ky, 391, 105 S. W. enactment, according to numerous decisions of 899, 32 Ky. Law Rep. 249, where the court this court, was clearly within the bounds of legheld that section 281 of the Criminal Code islative discretion. The right of appeal is not deprived it of the power to review the alleged a natural or inherent right. Indeed, in the error. In discussing the question the court state of Kentucky an appeal in a criminal or said:

penal case was not allowed prior to the year

1853, but the right was then conferred by stat"This court, recognizing the binding force of ute, and has ever since existed by legislative section 1 of the Fourteenth Amendment of the sanction, subject to certain conditions and limConstitution of the United States, which for- itations imposed by the same power. If combids any state to 'deny to any person within the petent to confer or withhold the right of appeal, L'nited States the equal protection of the laws,' the Legislature may declare under what condias far back as the year 1880, declared the then tions the right, when conferred, may be exerexisting statute prescribing the qualifications cised, and the courts of the state, in adminisof jurors unconstitutional in so far as it ex- tering the law, must obey the legislative will cluded from the jury service persons of the by observing the restrictions imposed. In other negro race (Commonwealth v. Johnson, 78 Ky. words, in matters appealable, the revisory pow509; Commonwealth v. Wright, 79 Ky. 22, 42 er of this court is restricted by the conditions Am. Rep. 203; Haggard v. Commonwealth, 79 and limitations imposed by statute.” Ky. 366), and shortly thereafter the statute was so amended by the Legislature as to conform to the requirements of the Fourteenth The views above expressed have been uniAmendment of the federal Constitution. It is formly adhered to, and we have frequently not declared by the Fourteenth Amendment, nor has any court, federal or state, ever held,' that written that section 281 of the Criminal Code a negro cannot lawfully be indicted and tried applies with equal force to all persons, reunless the jury is composed in part of persons gardless of their race, color, or circumstances of his own race, or that a white person cannot in life, and that the action of the trial lawfully be indicted and tried unless the jury is court upon challenges to the panel, and for composed in part of persons of his own race. cause, or upon motion to set aside an indictThe Fourteenth Amendment contemplates no ment, however erroneous or prejudicial it' other restriction upon the power of the state

may be, cannot be reviewed on appeal. Harto prescribe the qualifications of the jurors, ex

ris v. Commonwealth, 163 Ky. 781, 174 S. cept to inhibit a disqualification on account of race or color. Strauder v. West Va., 100 U. W. 476; Frasure v. Commonwealth, 180 Ky. S. 303, 25 L. Ed. 664: Neal v. Delaware, 103 274, 202 S. W. 653; Smith v. Commonwealth, U. S. 370, 26 L. Ed. 567; Gibson v. Mississippi, 154 Ky. 613, 157 S. W. 1089; Leadingham 162 U. S. 579, 16 Sup. Ct. 907, 40 L. Ed. 1075; v. Commonwealth, 182 Ky. 291, 206 S. W. Carter v. Texas, 177 U. S. 443, 20 Sup. Ct. | 483; Slaughter y. Commonwealth, 152 Ky. 687, 44 L. Ed. 839; Tarrance v. Florida, 188 125, 153 S. W, 46. It necessarily follows that U. S. 519, 23 Sup. Ct. 402, 47 L. Ed. 572. Upon the face of the record it may well be doubt. whether the trial court erred in overruling

we are without jurisdiction to determine ed whether the steps taken by appellant to sustain his plea in abatement and motion to

the motion to set aside the indictment. quash the indictment so conformed to the prac [5] It is next insisted that the evidence tice obtaining in the courts of this state as to was not sufficient to sustain the charge that make it appear that he was prejudiced in any the defendant had intoxicating liquor in his substantial right by the refusal of the circuit possession for the purpose of sale. H. L. court to quash the indictment. But, without Blakey, who had been hired to get people resting our decision of the question involved on that ground, there another and sufficient to violate the local option law, testified that reason why this court cannot exercise revisory during the last week of January, 1917, he power as to the alleged error complained of. went to defendant's home and purchased a It is forbidden by section 281 of the Kentucky pint of whisky from him, paying him a dolCriminal Code of Practice, which provides: lar for it. He also purchased whisky from The decision of the court upon challenges to him on several other occasions. Robert Mcthe panel, and for cause, upon motions to set | Cullum, who was also employed to get peraside an indictment and upon motions for a new trial, shall not be subject to exception.'

sons to violate the local option law, testified

Section 158 contains three grounds upon which the that on one occasion he went to defendant's circuit court may set aside an indictment, house with Blakey. The defendant went the first being, 'A substantial error in the sumr

into the house and returned with a pint of moning or formation of the grand jury,' but whisky, which he sold to Blakey, Since no exception can be taken by the commonwealth this evidence showed that defendant had to the action of the circuit court in setting whisky in his home and was engaged in aside an indictment, or by the defendant to its selling it, it was sufficient to make it a ques

The power conferred upon the circuit court by the mandatory provisions tion for the jury whether he had the whisky of section 281 is broad and beyond the revisory in his possession for the purpose of selling it. control of this court. Commonwealth v. Si

[6] The last error assigned presents a more

refusal to do so.

serious question. Several prominent citizens witness stand, but evidence that his reputaof the county were permitted to testify that tion was that of a bootlegger was permitted the defendant had the reputation of being to go to the jury as substantive evidence a bootlegger. There are only two ways by of his guilt, and the authorities all agree which the reputation of the accused may be that this cannot be done. 4 Chamberlayne put in issue: (1) Where he has offered proof on Evidence, g 3275; 8 R. C. L. & 208, p. of his good reputation; (2) where he has 212. We are also of the opinion that the offered himself as a witness. Gregory's | admission of this evidence was prejudicial Criminal Law, $ 1096; Combs v. Common- error, in view of the character of evidence wealth, 160 Ky, 386, 169 S. W. 879; Romes by which the defendant's conviction was v. Commonwealth, 164 Ky. 338, 175 S. W. secured. 669. Here, however, the accused did not offer Judgment reversed, and cause remanded proof of his good reputation, or go on the for a new trial consistent with this opinion.

(222 S.W.)

parts of the bill, answers, depositions, and other WORLD GRANITE CO. V. MORRIS BROS. proceedings in the cause, as the court may or

der." (Supreme Court of Tennessee. June 5, 1920.) "Sec, 5739. The chancellors of this state, or

a majority of them, may make such rules as Courts 80(1)—Defendant in equity suit de- they may deem beneficial and proper to regumanding jury trial in answer not to be de- late the practice of the chancery courts, not inprived thereof by rule of court.

consistent with the provisions of this Code; Chancery court could not deprive a defend- and the rules thus agreed upon shall be obligaant wbo has demanded a jury trial in his an- tory on all the chancery courts. swer of the right to such trial given him by

"Sec. 5740. In the absence of any such action Shannon's Code, & 6283, in view of sections by the chancellors as a body, each chancellor 5739, 5740, 6282, 6284, though defendant had may make rules and regulations oi practice for not complied with rule of court requiring de- the purpose of expediting business in his own fendant to demand a jury by a motion in court chancery division." after joinder of issue, such statute being mandatory, and such rule of court being in conflict

The rules of the chancery court of Shelby therewith.

county provide that, even where a jury is

demanded in the pleadings, such demand Appeal from Chancery Court, Shelby

will be treated as waived, unless the party County; F, H. Heiskell, Chancellor.

demanding the jury make a motion in court, Bill by the World Granite Company after the cause is at issue, for an order to" against Morris Bros. Decree for complain- have the cause placed on the jury calendar. ant, and defendants appeal. Reversed and

The defendants did not comply with this remanded.

rule, and we presume that it was for this L. T. M. Canada, of Memphis, for appel- reason that the chancellor declined to submit lants.

the issues to a jury. Banks & Harrelson, of Memphis, for ap The rules further provide that no cause pellee.

shall be placed on the jury calendar until

an order has been entered directing it. McKINNEY, J. The original bill in this It is insisted by the defendants that such cause was filed by the World Granite Com- a rule is inconsistent with the statute, and, pany to recover from Morris Bros., a part- they having demanded a jury in their annership, an account amounting to $1,420. swer, it was the duty of the clerk to enter

Defendants answered the bill, denying the cause upon the trial docket, and that that they were indebted to the complainant the chancellor has no right to make any rule in any sum, and in said answer demanded that would deprive them of the right given a jury to try the issues.

them by the statute. When the cause came on for hearing, the The statute in question is mandatory, and defendants insisted on having same tried by provides that where a jury is demanded in a jury, but the chancellor was of the in- the pleading the cause shall be tried beion that they were not entitled to a jury, {fore a jury. and, over their objection, heard the cause In Harris v. Bogle, 115 Tenn. 701, 92 S. without a jury.

W. 850, this court had under consideration The defendants declined to offer any a chancery rule which provided thatproof, and upon the evidence introduced by

“Application for a jury must be made by petithe complainant the chancellor entered a

tion in open court upon the first day of the decree in its favor for the amount sued for. trial term.” The defendants have appealed from said decree, and have assigned as error the action The court said: of the chancellor in denying them a trial by à jury.

"It is observed that the sections last quoted The pertinent provisions of our statutes rules which are inconsistent with the provi

(5739 and 5740] forbid the making of any (Shannon's Code) in regard to jury trials in sions of the Code. chancery causes are as follows:

"The rule above quoted has no application to "Sec. 6282. Either party to a suit in chan- the case contemplated in Code, $ 6283. If there cery is entitled, upon application, to a jury to be any conflict it must be with the provisions try and determine any material fact in dispute, of section 6234. This provides for the making and all the issues of fact in any case shall be of an application ‘after the cause is ready for submitted to one jury.

hearing. That section does not, in terms, give "Sec. 6283. If the demand is made in the the right to demand a jury at any time after pleadings, the cause shall be tried at the first the cause is ready for hearing. This omission term before a jury summoned instanter, in the left the matter open to regulation by rule of same way that jury causes are tried at law.

the court under the sections of the Code above **Sec. 6284. If the demand is only made after quoted upon that subject.” the cause is ready for hearing, the trial will be before a jury summoned instanter upon the like

Where the demand for a jury is made in evidence as a suit at law, together with such the pleadings, section 6283, in express

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