notified by the arbitrator that he did not desire their presence; but appellant when asked by the arbitrator if he had any further evidence to offer, being in ignorance of the fact that these two depositions had been taken, bearing upon the claims of appellee, which he says had not been mentioned in the first meeting, and thinking that only his own and his brother's statement given in the first meeting were to be considered, told the arbitrator that he had nothing further to offer. At the meeting on that day we find again the uncle of appellee's wife aiding the arbitrator, and actually writing or copying the award, and Breeding, the other representative of appellee, also present, and no representative of appellant. It is the tendency of the courts to uphold awards upon sound principles of public policy; but we cannot sanction one rendered in such an ex parte proceeding where one party has had no opportunity to controvert the evidence of his adversary taken in his absence and transcribed by a partisan and relative of the other party, and especially where the award is principally based on that evidence. He not only had no opportunity to cross-examine these witnesses, but he had none to controvert their testimony by others, for the fact that their evidence had been taken was concealed from him until after the award. The courts will look with suspicion upon an award based on ex parte evidence, and particularly where that evidence is used to substantiate claims which one party to the arbitration did not know were being asserted against him. In Cravens v. Estis, 144 Ky., 511, it was held that one arbitrator and an umpire were without authority to make an award in the absence of the other arbitrator without notice to him. There is much stronger reason why a sole arbitrator should not be permitted to make an award based upon evidence taken without notice to the party against whom it was used. The judgment is reversed, with directions to set aside the award; to transfer the cause to the equity docket, and refer it to a commissioner for a settlement of the accounts between the parties, and to allow them to amend their pleadings. Elliott v. Commonwealth. (Decided September 19, 1913). Appeal from Graves Circuit Court. 1. Homicide-Criminal Law-Motion for Continuance.-Where the trial court in overruling apellant's motion for a continuance, held that he might read the affidavit stating what absent witnesses would testify if present, which privilege he did not take advantage of, there is no merit in the contention that the court erred in refusing a continuance. 2. Homicide-Criminal Law-Evidence of Accomplices-Corroboration. The claim that the evidence of the accomplices is not suf ficiently corroborated to justify conviction cannot be upheld. Several witnesses testified that they saw appellant at the scene of the shooting shortly after it occurred with a pistol in his hand, and one or more witnesses testified that appellant on that day admitted that he had done the killing, and this evidence taken in connection with the evidence of the accomplices that appellant did the shooting justified the jury in reaching the conclusion it did. of a 3. Jury-Alleged Misconduct of Juror.-Where a statement juror was merely an expression of disapproval at appellant's course in changing his testimony at the second trial, it cannot be said to indicate that he had made up his mind as to appellant's guilt. (For former opinion, see 152 Ky., 791.) W. S. FOY for appellant. JAMES GARNETT, Attorney General, O. S. HOGAN, Assistant Attorney General for appellee. OPINION OF THE COURT BY JUDGE TURNER-Affirming. This is the second appeal of this case; the opinion on the former appeal will be found in 152 Ky., 791. On the last trial from which this appeal is prosecuted appellant was convicted of voluntary manslaughter; on that trial the evidence was substantially the same as recited in the former opinion, except that Wadlington and Magness, who were jointly indicted with appellant, testified. Magness' statement as to what occurred at the barn when Dallas was killed is in substance that when Dallas came to the barn after the other three had gone there he upbraided him (Magness) for allowing Wadlington to have his horse and buggy to follow him out the road; and that while he and Dallas were in this altercation, Wadlington attacked Dallas and struck him over the head with a beer bottle and knocked him to his knees, and that while Dallas was on his knees Wadlington handed Elliott a pistol and told him to shoot Dallas, and that if he did not he would knock him down, and Elliott shot. Wadlington's statement is in substance that when Dallas came into the barn he and Magness immediately engaged in a difficulty, and that Elliott interfered, and he (Elliott) and Dallas had some words, and Elliott told Dallas not to jump on the boy; that they then became engaged in a difficulty, and Dallas had an open knife in his hand and advanced upon Elliott and chased him around the buggy twice, Elliott fleeing from him, and then Elliott shot. Appellant's first complaint is that the court erred in refusing to give him a continuance; he filed his affidavit stating what certain absent witnesses would testify if present, and the court in overruling his motion for continuance held that he might read the affidavit as the deposition of such witnesses, which privilege he did not take advantage of on the trial. The claim that the evidence of Wadlington and Magness, accomplices of appellant, is not sufficiently corroborated to justify conviction, cannot be upheld; several witnesses testified that they saw appellant at or near the barn door shortly after the shooting with a pistol in his hand, and one or more witnesses testified that appellant on that day admitted that he had done the shooting. Certainly this evidence taken in connection with the evidence of Magness and Wadlington would justify the jury in reaching the conclusion it did. Lastly, it is urged that a new trial should have been granted because of the misconduct of one of the jurors; appellant filed the affidavits of four parties who stated that they were present at the former trial with the juror, David Frazier, and that they heard the testimony of Elliott on that trial, and that Frazier said, at the time, "That Clarence Elliott ought to have his neck broken because he had changed his statement." This statement of the juror made at the time of the second trial referred to the change in the testimony of appellant, he having testified on the first trial that he had done the shooting, and on the second trial that Wadlington had done it. There is nothing in this statement of the juror which indicates that he had made up his mind as to the guilt of appellant; it was merely his manner of expressing disapproval of appellant's course in changing his testimony at the second trial, or was his way of saying that he thought it was an unwise move on appellant's part. Upon the whole record we are of the opinion that appellant had a fair and impartial trial. Judgment affirmed. Wayne (alias Wing) v. Commonwealth. (Decided September 19, 1913). Appeal from Henry Circuit Court. 1. Homicide-Involuntary Manslaughter-Voluntary ManslaughterAccidental and Unintentional Killing-Instructions.-It has been the uniform ruling of this court in cases where homicide is claimed to be accidental, and there is any evidence to justify it, that it is the duty of the trial court not only to give an instruction upon accidental and unintentional killing, but to give one based upon the reckless or grossly careless use of fire arms constituting voluntary manslaughter. 2. Homicide-Involuntary Manslaughter-Voluntary ManslaughterAccidental Killing-Instructions.-Where the jury might very well have believed from the evidence that the killing was unintentional, but believe at the same time that appellant was so careless and reckless in handling the pistol that he ought to have been punished more severely than by a fine and jail sentence, under an involuntary manslaughter instruction the jury had no alternative except to adjudge him guilty of involuntary manslaughter, and thereby impose the small penalty of fine and imprisonment, or inflict the extreme penalty of life imprisonment, or death, and under the evidence and rule referred to, the failure to give an instruction upon voluntary manslaughter was error. W. B. MOODY, MOODY & BARBOUR, W. P. THORNE and J. R. FEARS for appellant. JAMES GARNETT, Attorney General, D. O. MYATT, Assistant Attorney General for appellee. OPINION OF THE COURT BY JUDGE TURNER-Reversing. Appellant was indicted in the Henry Circuit Court charged with the murder of Pryor Martin. On his trial he was adjudged guilty, and sentenced to confinement in the penitentiary for life, and from that judgment he appeals. The trial disclosed that they were both negro men, and worked for Mr. James Foree, in Henry County; that they kept bachelor's hall, and lived together in a small house belonging to him and had for several months before the killing; that they had always appeared to be on good terms, in fact as stated by Mr. Foree that they acted like brothers. On one Sunday in December, 1912, they each procured from their employer a horse and buggy, one to go one place and the other to another, but it appears that that afternoon they met at the residence of Martha Darkess, another negro in the vicinity, where there was quite a gathering of negroes. While appellant and Martin were there, and while they together with two negro women were in a room, Martin was shot in the temple by a pistol in the hands of appellant and immediately died. The two negro women who were in the room stated in substance that they were on one side of the room engaged in looking at some pictures on the wall; that they heard no words or altercation of any kind between the two men, that their backs were turned when the pistol fired; that there had been no quarrel or unpleasantness. Immediately after the shooting appellant left the room and went out into the yard where, as stated by three or four of the negroes, he said he had killed Pryor Martin, and that he had just as soon kill two or three as not; he thereupon got into his buggy and taking one of the negro women with him went to his brother's nearby where he stayed until Monday when he disappeared; afterwards he was located and arrested in Indiana. Appellant admitted that before the occurrence in question he had taken one or more drinks of whisky, but there is no evidence that he was to any great extent under the influence of it. Appellant's own testimony is in substance that he and Martin were on excellent terms, that there had never been any difficulty or misunderstanding between them, that Martin was the best friend that he had ever had, and that the shooting was purely accidental. His version of how the shooting happened is that while he was standing in front of the grate and Martin sitting in a chair nearby, Martin asked him to lend him. his gun, and that he said all right; that he then pulled his gun (meaning pistol) out of his pocket and com |