(222 S.W.) a verdict in favor of Williams and his wife for the sum of $2,800 direct damages. The railroad companies are prosecuting this appeal and ask a reversal upon three grounds: (1) Appellees were allowed to recover damages for the obstruction of a private passway, which was not located entirely upon their own lands, but partly upon their lands and partly upon the lands of another, while "the obstruction complained of," if there was an obstruction, was near the end of the passway and on the lands of a third person. (2) The verdict is grossly excessive. (3) The court gave to the jury erroneous instructions. It will be seen, however, that the chief, if not the only, error complained of by appellant is the failure of the trial court to admonish the jury at the conclusion of all the testimony not to consider evidence offered by appellees as to loss suffered by them by reason of the obstruction of the private passway. going to and from their home and farm across the river to their other lands, as well as to the public highway leading to the county seat. The railroad companies admitted that the Williams were the owners of the land in question, but they denied the trespass, as well as all damages resulting therefrom, and relied upon their right under the option given by Hiram Williams as a justification for entering upon the lands. At the trial the railroad companies offered to confess judgment for $50 for appropriating the 1.4 acres of land taken and used by them as a right of way, and $1,200 for damages to the adjacent property, or a total of $1,250, and tendered said sum to the plaintiffs for the taking of said property and for all damages incident thereto. This the appellees rejected. [1, 2] Appellees alleged ownership in themselves of the lands in controversy and this was admitted by the railroad companies. Appellees also alleged that they had used and enjoyed a passway from their home and farm across the river to their other lands and to the highway, and this was not controverted. In the taking of proof, appellees started in to establish their title, but appellants, to save time, admitted that the plaintiffs were the owners of the lands, and this was noted of record. The first witness introduced, after telling about the obstruction of the channel of the river by the embankment of the railroad, told also of the obstruction of the passway by the railroad embankment. No objection was made to this evidence by appellants. Other witnesses gave similar evidence without objection, but at the conclusion of all the evidence the appellants moved for a peremptory instruction in their favor as to the damages for "the alleged destruction of the passway in controversy" upon two grounds: (1) Because the appellees had not shown that they owned the passway; (2) because the pleading did not make any claim for damages upon that ground. This motion was overruled by the court, and we think properly so, because in the first place it was not necessary for appellees to have alleged or shown title in themselves to the passway in order to entitle them to prove that it had been obstructed by the railroad companies as an element of, This litigation started almost ten years ago. In 1910 the railroad companies obtained from one of the appellees, Hiram Williams, a written option of a right to appropriate a strip of land 100 feet wide through his farm, for the purpose of building a railroad. Mrs. Williams did not sign this contract, although she was the owner of an undivided one-half interest in the farm. The railroad companies started construction work, to which Williams objected, and was threatening to eject the workmen, when the railroad companies instituted an action praying an injunction against Williams, staying him from interfering with their construction work. There was an injunction granted, but it was shortly thereafter dissolved on motion of Williams; in the meantime the railroad companies had instituted another action against Williams for specific performance of his option contract, and this latter action is the one in which the opinion supra was rendered. While these two actions were pending, Mrs. Williams instituted another action in her separate name, claiming to be the exclusive owner of the tract of land and seeking damages against the railroad companies for trespassing upon her property and appropriating a portion thereof. By special demurrer the question of defect of parties plaintiff was raised, and the court required Mrs. 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 obstrucon 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 passflooding their farm at intervals and washing away their lands; and, further, that the embankment of the recently constructed railroad obstructed and rendered of no practical use a certain passway used by plaintiffs in way was admissible under a general averment of incidental damages to the land from the taking of the strip for right of way. The second ground relied upon by appellants for peremptory instructions was equally without merit. The pleadings do sustain the claim (5. Intoxicating liquors ~238 (4)—Whether defor 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 have shown that they suffered damages by reason of the obstruction of the passway which was appurtenant to their freehold. The other two grounds urged for reversal are rested upon the one we have just disposed of, and, the first one being without merit, the other two are rendered unavailing, for it is practically admitted by appellants that the damages are not excessive if the obstruction to the right of way could have properly been considered; and, further,, that the instructions are not erroneous if the evidence concerning the obstruction of the passway was properly admitted. The right of appellees to recover not only for taking of the 1.4 acres of land as a right of way but for all damages to the remainder of the farm, which directly flowed from such taking, was fully recognized and established by the opinion on the first appeal. Judgment is affirmed. OWENS v. COMMONWEALTH. (Court of Appeals of Kentucky. June 15, 1920.) 1. Constitutional law 206(1), 221, 267-Restrictions by Fourteenth Amendment on qualification of jurors only inhibits disqualification on account of race or color. The Fourteenth Amendment to the Federal Constitution contemplates no other restriction upon the power of the state to prescribe the qualifications of jurors, except to inhibit a disqualification on account of race or color. 2. Criminal law 1134 (3)-Court of Appeals cannot review action of court in refusing to set aside indictment. Under Cr. Code Prac. § 281, no exception can be taken by the commonwealth to action of the circuit court in setting aside an indictment, or by the defendant, to his refusal to do so; the power conferred by such statute upon the circuit court being beyond the revisory control of the Court of Appeals. 3. Constitutional law 221-Statute making final decision upon challenges to panel, etc., not discriminatory against race. Cr. Code Prac. § 281, making the action of circuit court upon challenges to the panel and for cause upon motions to set aside an indictment final and not reviewable, is not unconstitutional as being discriminatory against persons of any race or color. 4. Criminal law 1004-Right of appeal not In a prosecution for having intoxicating liquors in possession for the purpose of sale, tent a question for the jury. evidence held sufficient to make defendant's in6. Criminal law 376-Reputation of accused admissible only where defendant offers proof thereof. Testimony as to the reputation of accused proof of his good reputation, or where he has is admissible only where accused has offered offered himself as a witness. Appeal from Circuit Court, Hardin County. William Owens was convicted of having intoxicating liquors in his possession for the purpose of sale, and appeals. Reversed and remanded. H. L. James, of Elizabethtown, for appellant. Chas. I. Dawson, Atty. Gen., for the Commonwealth. CLAY, C. William Owens was indicted for the offense of having intoxicating liquors in his possession for the purpose of sale. The indictment also charged that he had theretofore been indicted, tried, and convicted for a violation of the local option law. The jury found him guilty, and fixed his punishment at confinement in the penitentiary for one year. He appeals. turned against the defendant, one in March, 1918, and the other in June, 1919. The defendant moved to quash the first indictment on the ground that he was a negro, that the grand jury which indicted him was composed of white persons only, and that the jury commissioners excluded from the list, from which the members of the grand jury were drawn, all persons of African descent because of their race and color, thus denying him the equal protection of the law, etc. On this motion evidence was heard and the motion was overruled. The defendant then demurred to the indictment, and the demurrer was sustained. On motion of the county attorney the case was referred to a subsequent grand jury, which returned the second indictment under which defendant was convicted. The defendant then moved It appears that two indictments were re that this indictment be quashed on the ground that he and members of his race had been discriminated against because persons of African descent had been excluded from service on the grand jury solely because of their race and color. The cause being submitted on the motion, the motion was overruled. [1-4] Defendant insists that the court erred in overruling the motion without giving him an opportunity to present evidence sus (222 S.W.) taining the grounds relied on, and in support of this position we are referred to the case of Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839. Precisely the same question was raised in the case of Miller v. Commonwealth, 127 Ky. 391, 105 S. W. 899, 32 Ky. Law Rep. 249, where the court held that section 281 of the Criminal Code deprived it of the power to review the alleged error. In discussing the question the court said: "This court, recognizing the binding force of section 1 of the Fourteenth Amendment of the Constitution of the United States, which forbids any state to 'deny to any person within the United States the equal protection of the laws,' as far back as the year 1880, declared the then existing statute prescribing the qualifications of jurors unconstitutional in so far as it excluded from the jury service persons of the negro race (Commonwealth v. Johnson, 78 Ky. 509; Commonwealth v. Wright, 79 Ky. 22, 42 Am. Rep. 203; Haggard v. Commonwealth, 79 Ky. 366), and shortly thereafter the statute was so amended by the Legislature as to conform to the requirements of the Fourteenth Amendment of the federal Constitution. It is not declared by the Fourteenth Amendment, nor has any court, federal or state, ever held, that a negro cannot lawfully be indicted and tried unless the jury is composed in part of persons of his own race, or that a white person cannot lawfully be indicted and tried unless the jury is composed in part of persons of his own race. The Fourteenth Amendment contemplates no other restriction upon the power of the state to prescribe the qualifications of the jurors, except to inhibit a disqualification on account of race or color. Strauder v. West Va., 100 U. S. 303, 25 L. Ed. 664; Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567; Gibson v. Mississippi, 162 U. S. 579, 16 Sup. Ct. 907, 40 L. Ed. 1075; Carter v. Texas, 177 U. S. 443, 20 Sup. Ct. 687, 44 L. Ed. 839; Tarrance v. Florida, 188 U. S. 519, 23 Sup. Ct. 402, 47 L. Ed. 572. Upon the face of the record it may well be doubt ed whether the steps taken by appellant to sustain his plea in abatement and motion to quash the indictment so conformed to the practice obtaining in the courts of this state as to make it appear that he was prejudiced in any substantial right by the refusal of the circuit court to quash the indictment. But, without resting our decision of the question involved on that ground, there is another and sufficient reason why this court cannot exercise revisory power as to the alleged error complained of. It is forbidden by section 281 of the Kentucky Criminal Code of Practice, which provides: The decision of the court upon challenges to the panel, and for cause, upon motions to set aside an indictment and upon motions for a new trial, shall not be subject to exception.' Section 158 contains three grounds upon which the circuit court may set aside an indictment, the first being, 'A substantial error in the sum moning or formation of the grand jury,' but no exception can be taken by the commonwealth to the action of the circuit court in setting aside an indictment, or by the defendant to its refusal to do so. The power conferred upon the circuit court by the mandatory provisions of section 281 is broad and beyond the revisory control of this court. Commonwealth v. Si mons, 100 Ky. 164, 37 S. W. 949, 18 Ky. Law Rep. 648. Section 281 was enacted after the repeal of the former statute disqualifying persons of the colored race for jury service. It against persons of any race or color, and its does not in the meaning or effect discriminate enactment, according to numerous decisions of this court, was clearly within the bounds of legislative discretion. The right of appeal is not a natural or inherent right. Indeed, in the state of Kentucky an appeal in a criminal or penal case was not allowed prior to the year 1853, but the right was then conferred by statute, and has ever since existed by legislative sanction, subject to certain conditions and limitations imposed by the same power. If competent to confer or withhold the right of appeal, the Legislature may declare under what conditions the right, when conferred, may be exercised, and the courts of the state, in administering the law, must obey the legislative will by observing the restrictions imposed. In other words, in matters appealable, the revisory power of this court is restricted by the conditions and limitations imposed by statute." The views above expressed have been uniformly adhered to, and we have frequently written that section 281 of the Criminal Code applies with equal force to all persons, regardless of their race, color, or circumstances in life, and that the action of the trial court upon challenges to the panel, and for cause, or upon motion to set aside an indictment, however erroneous or prejudicial it' may be, cannot be reviewed on appeal. Harris v. Commonwealth, 163 Ky. 781, 174 S. W. 476; Frasure v. Commonwealth, 180 Ky. 274, 202 S. W. 653; Smith v. Commonwealth, 154 Ky. 613, 157 S. W. 1089; Leadingham v. Commonwealth, 182 Ky. 291, 206 S. W. 483; Slaughter v. Commonwealth, 152 Ky. 128, 153 S. W. 46. It necessarily follows that whether the trial court erred in overruling we are without jurisdiction to determine the motion to set aside the indictment. [5] It is next insisted that the evidence was not sufficient to sustain the charge that the defendant had intoxicating liquor in his possession for the purpose of sale. H. L. Blakey, who had been hired to get people to violate the local option law, testified that during the last week of January, 1917, he went to defendant's home and purchased a pint of whisky from him, paying him a dollar for it. He also purchased whisky from him on several other occasions. Robert McCullum, who was also employed to get persons to violate the local option law, testified that on one occasion he went to defendant's house with Blakey. The defendant went into the house and returned with a pint of whisky, which he sold to Blakey. Since this evidence showed that defendant had whisky in his home and was engaged in selling it, it was sufficient to make it a question for the jury whether he had the whisky in his possession for the purpose of selling it. [6] The last error assigned presents a more tion was that of a bootlegger was permitted to go to the jury as substantive evidence of his guilt, and the authorities all agree that this cannot be done. 4 Chamberlayne on Evidence, § 3275; 8 R. C. L. § 208, p. 212. We are also of the opinion that the admission of this evidence was prejudicial error, in view of the character of evidence by which the defendant's conviction was secured. serious question. Several prominent citizens | witness stand, but evidence that his reputaof the county were permitted to testify that the defendant had the reputation of being a bootlegger. There are only two ways by which the reputation of the accused may be put in issue: (1) Where he has offered proof of his good reputation; (2) where he has offered himself as a witness. Gregory's Criminal Law, § 1096; Combs v. Commonwealth, 160 Ky. 386, 169 S. W. 879; Romes v. Commonwealth, 164 Ky. 338, 175 S. W. 669. Here, however, the accused did not offer proof of his good reputation, or go on the Judgment reversed, and cause remanded for a new trial consistent with this opinion. (222 S.W.) WORLD GRANITE CO. v. MORRIS BROS. (Supreme Court of Tennessee. June 5, 1920.) Courts 80(1)—Defendant in equity suit demanding jury trial in answer not to be deprived thereof by rule of court. Chancery court could not deprive a defendant who has demanded a jury trial in his answer of the right to such trial given him by Shannon's Code, § 6283, in view of sections 5739, 5740, 6282, 6284, though defendant had not complied with rule of court requiring defendant to demand a jury by a motion in court after joinder of issue, such statute being mandatory, and such rule of court being in conflict therewith. Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor. Bill by the World Granite Company against Morris Bros. Decree for complainant, and defendants appeal. Reversed and remanded. [parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order." "Sec. 5739. The chancellors of this state, or a majority of them, may make such rules as they may deem beneficial and proper to regulate the practice of the chancery courts, not inconsistent with the provisions of this Code; and the rules thus agreed upon shall be obligatory on all the chancery courts. "Sec. 5740. In the absence of any such action by the chancellors as a body, each chancellor may make rules and regulations of practice for the purpose of expediting business in his own chancery division." The rules of the chancery court of Shelby county provide that, even where a jury is demanded in the pleadings, such demand will be treated as waived, unless the party demanding the jury make a motion in court, after the cause is at issue, for an order to have the cause placed on the jury calendar. The defendants did not comply with this 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. Banks & Harrelson, of Memphis, for appellee. the issues to a jury. The rules further provide that no cause 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. Defendants answered the bill, denying that they were indebted to the complainant in any sum, and in said answer demanded a jury to try the issues. When the cause came on for hearing, the defendants insisted on having same tried by a jury, but the chancellor was of the opinion that they were not entitled to a jury, and, over their objection, heard the cause without a jury. The defendants declined to offer any proof, and upon the evidence introduced by the complainant the chancellor entered a decree in its favor for the amount sued for. The defendants have appealed from said decree, and have assigned as error the action of the chancellor in denying them a trial by a jury. The pertinent provisions of our statutes (Shannon's Code) in regard to jury trials in chancery causes are as follows: "Sec. 6282. Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, and all the issues of fact in any case shall be submitted to one jury. "Sec. 6283. If the demand is made in the pleadings, the cause shall be tried at the first term before a jury summoned instanter, in the same way that jury causes are tried at law. swer, it was the duty of the clerk to enter the cause upon the trial docket, and that the chancellor has no right to make any rule that would deprive them of the right given them by the statute. The statute in question is mandatory, and provides that where a jury is demanded in the pleadings the cause shall be tried before a jury. In Harris v. Bogle, 115 Tenn. 701, 92 S. W. 850, this court had under consideration a chancery rule which provided that tion in open court upon the first day of the "Application for a jury must be made by petitrial term." The court said: "It is observed that the sections last quoted [5739 and 5740] forbid the making of any rules which are inconsistent with the provisions of the Code. "The rule above quoted has no application to the case contemplated in Code, § 6283. If there be any conflict it must be with the provisions of section 6234. This provides for the making of an application 'after the cause is ready for hearing.' That section does not, in terms, give the right to demand a jury at any time after the cause is ready for hearing. This omission left the matter open to regulation by rule of the court under the sections of the Code above quoted upon that subject." "Sec. 6284. If the demand is only made after 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
