(222 S.W.)

QUIN, J. In June, 1913, appellee Carter | ditch be not dismissed, process shall issue and others petitioned the county court for the establishment of a public drainage ditch or drain. Upon a trial of said proceedings in the county court there was a judgment adverse to the establishment of the ditch, and a like result followed a trial in the circuit court. Petitioners appealed to this court, and in an opinion reported in 179 Ky. 164, 200 S. W. 369, Carter et al. v. Griffith et al., the judgment of the lower court was reversed because of erroneous instructions and the admission and rejection of testimony.

This proceeding had been pending for something over five years at the time these petitions were filed. In the petition seeking the organization of the drainage district and the establishment of the ditch, some of the peti-trict by landowners consenting to be assessed tioners were named as persons whose land would be affected by the improvement. The viewers, however, did not report favorably upon the ditch as proposed by appellees. Had the viewers followed the route outlined in the petition, the lands of many of the petitioners would have been included; but they reported in favor of a more restricted district than that sought, thus eliminating the land of some of the petitioners.

While not necessary parties, it would not witnesses, but much evidence relating to the have been improper, had the court, upon mo- effect of the Rhodes ditch was admitted. On tion reasonably made, permitted petitioners the other hand, appellants' objections to simto be made parties; but the petitions were ilar questions propounded appellees' witnessnot tendered until more than five years after es were sustained. Altogether it seems the the proceedings were instituted. To permit advantage in this respect is with appellants. petitioners at so late a date to file these plead- [5] It is but natural, in a trial like this, ings might lead to almost endless delay and with so many witnesses before the court, and defeat the construction of the ditch. If ac- so many questions of law and practice raiscorded the relief sought, what would prevented, that the court might err at times in passother landowners bordering on Panther creek, ing upon the competency and incompetency further distant from the mouth of the ditch, of testimony. There are few contested cases from later coming in, asking leave to be made where the record is free from error. The parties, and to file exceptions? Then, per- question is whether the ruling was prejudihaps, after these had been disposed of, others cial. We find no such errors in the record. would make a like request, and so on ad in- Refusal of the court to permit Dr. Barnett finitum. We do not think it was ever con- to answer a hypothetical question is likewise templated that persons below or outside of urged as error; but the question, covering, as the proposed district should be made parties it does, three pages of the transcript, is much to the proceedings. involved, and is one that should more properly have been addressed to an engineer. The ruling of the court in refusing to permit the witness to answer was not error.

[4] 2. It is urged the court erred in the admission and rejection of evidence. Because of the conclusion above reached, it follows the court did not err in refusing to allow appellants to introduce evidence as to the effect of the proposed improvements on the lands below the mouth of the ditch.

[6] 3. It is said the court erroneously instructed the jury. No useful purpose would be served in copying these instructions into the opinion. Standing alore, the first inIt is complained the court refused to per- struction did not properly submit the case mit four witnesses, "after they had testified to the jury; but its insufficiency was cured to facts," using the language of appellants' by the second instruction, which referred brief, to testify that it was not practicable back to and made the first instruction a part to construct the proposed ditch. This very of the second, the same as if copied therein, point was decided in the first opinion, where- and, taking the two as one instruction, as in, referring to certain witnesses, it is said: must be done, under the wording of the sec"It was error to permit Dr. Carter and Sam ond instruction, they properly submitted the Neal, who had not qualified as experts by show-issue to the jury. Certainly appellants have ing any scientific or practical knowledge on

the subject, to give it as their opinion that it no cause to complain thereof. The third was was not practicable to drain the proposed dis- but the converse of the second instruction. trict by a public ditch. They should have been The fourth instruction given was tendered permitted to testify only to the facts, thus by appellants. Appellants were not entitled leaving to the jury the right to draw its own deduction from the facts so stated and the to have other tendered instructions given.

other evidence in the case."

The same rule is applicable to the testimony of certain witnesses as to whether in their opinion the establishment of the improvement would be beneficial to the general health or conducive to the general welfare. They were permitted to state the facts, as conceded in counsel's brief; further than this they were not qualified to testify. The testimony on the two trials is substantially the same.

The ditch involved in the present proceeding is known as the "Finley-Carter ditch," and parallels the "Rhodes ditch" in the Panther creek valley. It is claimed witnesses for appellee were allowed to testify as to the advantages accruing from the construction of the Rhodes ditch, but that appellants' witnesses were denied the right to testify as to the disadvantages resulting therefrom. We have examined the evidence in this connection and we fail to find wherein the court has ruled prejudicially to appellants. It is trae the court sustained appellees' objection

[7] It is also urged in the brief that the court erred in holding that the burden of proof was with appellants. Appellants, without objection, introduced their evidence first, which gave them the concluding argument. There was no objection on their part to thus assuming the burden, nor was this alleged error made a ground for a new trial. The aforesaid statute provides that, if the report shows the proposed improvement is not practicable, or will not benefit the public health, or any public highway, or be conducive to the community's general welfare, the petition for the ditch shall be dismissed. If a contrary condition is shown, the proceeding shall be continued for process and for further orders. The burden was on the excep tors, as the viewers' report makes out a prima facie case for the appellants. Katterhenry v. Arensman, 183 Ind. 347, 108 N. E. 101; Mapel v. Calhoun County, 179 Iowa, 981, 162 N. W. 198; Hall v. Polk, 181 Iowa, $28, 165 N. W. 119. It is so provided in the 1918 act. 3 Ky. Stats. § 238ʊb9.

Finding no grounds justifying a reversal,

(222 S.W.)

peremptorily instructed the jury to find in ADAMS et al. v. HORN et al. favor of the construction of the ditch. An appeal was taken to the circuit court, which (Court of Appeals of Kentucky. May 28, ordered the exceptions filed, and the petition 1920.) was dismissed. The circuit court was revers1. Drains 14(3)-Where evidence to sup-ed in an opinion reported in 184 Ky. 424, 212 port statutory requirements for a ditch is S. W. 108, Horn v. Adams et al.; the only contradicted, the question is for the jury. question on that appeal being whether a Where the evidence in support of the stat-drainage district could be organized within utory requirements for a proposed drainage the limits of an established district. This ditch was contradicted, the question is for the court held that such could be done. After jury, and a peremptory instruction in favor of the return of the case to the circuit court, the improvement is erroneous. and before trial, further amended exceptions 2. Drains 14 (2)-Petition for a drainage were tendered; but the circuit court refused district, filed under the act of 1912, need not to allow these to be filed. There was a be signed by 25 per cent. of owners, as re-verdict at the hands of a jury in favor of quired by amendment. petitioners, and this appeal is to reverse that

A petition to establish a drainage district, judgment. filed under Acts 1912, c. 132, need not be sign- [1] The court in its first instruction peremped by 25 per cent. of the landowners, as re- torily told the jury to find in favor of the quired by the amendment of 1918 (Ky. St. improvement. This was error. Many witSupp. 1918, § 2380-49) because the amend- nesses were introduced by the respective ment expressly validates all prior proceedings parties. Those testifying for the petitioners set forth the insufficient drainage in the

had under the act.

3. Drains 14(3)-On appeal to the circuit vicinity, and the benefits that would accrue court, amended exceptions to establishment from the construction of the ditch, as well as of district pertaining to issue raised below its needs, its practicability, propriety, and may be filed. other statutory requirements. This evidence was contradicted by witnesses introduced by the exceptors; thus the question was for the jury.

While the Drainage Act of 1912 provides that on appeal to the circuit court the issue shall be heard de novo, but shall be confined to those raised in the lower court, exceptors to the establishment of a drainage district may file amended exceptions pertaining to the same subjects raised below, and so the amended exceptions, merely diminishing the territory sought to be excluded, were improperly rejected.

It is provided in subsection 3, Ky. Stats. § 2380 (Ed. of 1915), that the viewers shall report whether the proposed improvement is practicable and the route the proper one; whether it will benefit the public health, comfort, or convenience, or any public highway, or be conducive to the general welfare of the community; the accruing benefits to the lands, and whether the lands affected are included in the proposed district. It is also provided:

Appeal from Circuit Court, Daviess County. Petition by J. B. Horn for the establishment of a drainage district, opposed by E. N. Adams and others. The proceeding was begun in the county court, and appealed to the circuit "If the board of viewers shall find the imcourt. From a judgment in favor of the improvement practicable, but the route named in provement, the exceptors appeal. Reversed the petition improper or impracticable, they for further proceedings.

may so state, showing therein the proper and practicable route," and "if the viewers report benefit the public health or any highway, or

Aud & Higdon and T. F. Birkhead, all of that the improvement is practicable, and will Owensboro, for appellants.

J. R. Hays and R. Miller Holland, both of will be conducive to the general welfare of the Owensboro, for appellees.

community affected, then the proceeding shall be continued, for process and for further orders."

QUIN, J. This is an action under the Drainage Act of 1912 (Ky. Stats. [Ed. 1915] The practicability and propriety of the route 2380), instituted by appellee, Horn, and selected, as well as the needs or accruing others for the establishment of a drain- benefits, were not submitted to the jury. In age ditch for the improvement of what is instruction No. 2 the jury was told to find known as Burnett's creek, a tributary of against the exceptors, unless they believed Panther creek. Viewers were appointed, made their report, exceptions were filed, and a trial had. During the trial in the county court exceptors tendered amended exceptions raising the question as to the right to establish a separate drainage district within the district already established. The court refused to allow said exceptions to be filed, and

their land would not be benefited by the proposed improvement, in which event the jury should find in favor of any exceptors not deriving benefits from the improvements against the other. This was the only question submitted to the jury.

Instruction No. 3 tendered by appellant is not complained of. The substance of instruc

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tions B and C, tendered by appellant, was correct the instructions given by the lower included in instruction No. 2 given by the court. These instructions might be followed court. Appellant was not entitled to have on the next trial in so far as applicable to instruction D given to the jury but the theory the facts of this case. sought to be included therein should be embodied in an instruction given upon the next trial.

Thus the court did not err in refusing to lieve that they were in peril, was harmless give instruction E.

(222 S.W.)

who has testified, be recalled if he is present or so convenient as to be quickly secured, and in the presence of the parties and their attorneys ask proper questions.

7. Criminal law 689-Witnesses 246 (5) Recalling a witness for examination by juror after submission held not reversible error.

In a homicide case it was not error for the court, after submission of the case, at the request of a juror to recall a witness whose son had also been indicted and allow the juror to examine her as to whether she received threats that her son would be sent to the penitentiary unless she produced evidence against one of the defendants; it being the theory of the defense that the principal witness against him, who was a sister of the one indicted, was coerced.

Appeal from Circuit Court, Perry County. Allen Miller and wife were convicted of manslaughter, and they appeal. Affirmed. Hogg & Johnson and F. J. Eversole, all of Hazard, for appellants.

Chas. I. Dawson, Atty. Gen., and Thomas B. McGregor, Asst. Atty. Gen., for the Commonwealth.

CARROLL, O. J. The appellants, Allen Miller and Delilah Miller, under an indictment charging them with the murder of Sam Combs, were found guilty of manslaughter and the punishment of each assessed at a term in the penitentiary for 21 years.

[1] The evidence in the record leaves in considerable doubt the circumstances surrounding the death of Combs, who one evening after supper left his home and the next morning was found dead at the house of the Millers, who are husband and wife. The only person who testified as to the manner in which Combs came to his death was Delilah Miller, and she said: That Sam Combs, who lived in the same neighborhood, was well known to her. That on the night he was killed she and a little girl about six years old were occupying alone the cabin in which she and her husband lived. That her husband about 3 or 4 o'clock on the afternoon of that day went to the house of his brother, John Miller, where he stayed all night, leaving no person at his home except herself and the little girl. That she was awakened about 2 or 3 o'clock in the morning by a "pounding" on the door of the room in which she and the child were sleeping. That she did not know who it was until she asked, and the person said: "Bad Sam Combs, by God, the worst God ds

of

a b ever seed this place,' and I says 'Get away from here; you have no business here,' and he says, 'By G-d, I make business wherever I go,' and he pounded on the door, and I got up and got the gun and held the gun in my hand, and the door flew open,

and I heard something burst in the floor, and, as quick as I discovered him, I shot, and I dropped the gun down on the bed and grabbed the little girl up and went out the door barefooted and in my nightclothes, as quick as I could get out, and went down to Sallie Miller's."

She further said that he prized the door open, and while there was no light or fire in the room, there was enough light from the door and window to enable her to discover that it was a man, but she only knew who it was from what he said; that as soon as he came in the door she shot as quick as she could with a single-barrel shotgun.

This is all the evidence as to the circumstances surrounding the death of Combs, nor does the record disclose why or how he happened to be at the house of Miller at the time he was killed. The fact is that the evidence is so confusing and contradictory as to leave involved in doubt every material fact connected with the case, except that Sam Combs was shot and killed during the night at the house of Miller.

Allen Miller testified that he was not at home during the night and did not know anything about the tragedy until late the next morning, when he was told what happened by some people that he met.

Nancy Miller, a girl about 14 years old and a niece of Allen Miller, testifying for the commonwealth, said that she went to Allen Miller's house in the afternoon of the day before Combs was killed and remained in the house all night; that she retired early and went to sleep, but about 10 or 11 o'clock was awakened by a noise in the room in which she was sleeping, and saw Delilah Miller, who was sleeping in the bed with her, get up and open the door and let Sam Combs in the room; that Allen Miller was at home and in the room where they were sleeping, and when Sam Combs came in he and Allen Miller sat in the room, and she saw them drinking whisky; that presently she went to sleep and was next aroused by the firing of a gun and saw Allen Miller standing near the door holding Sam Combs; that Delilah Miller was standing over in one corner of the room; that she did not hear anything said at this time, but got up at once and went out of the house to Sallie Miller's, a neighbor, who lived near by.

This girl was the principal witness for the commonwealth, in connection with two or three other witnesses, who testified to threats made by Allen Miller that he would kill Combs.

It will be noticed that Delilah Miller testified that she shot and killed Sam Combs, but it appears probable that the jury may have believed that he was killed by Allen Miller and that his wife, Delilah, assumed the blame in order to exonerate her husband

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222 S.W.-7