(216 S.W.)

an accomplice, as required by section 241 of ❘ witnesses were allowed to remain in the court the Criminal Code of Practice; and (6) preju- room. Nearly all of them testified to different dicial argument made by attorney for the facts and circumstances looking to the guilt of commonwealth in addressing the jury. the defendant, and there was not and could not be any occasion for any collusion or conspiracy among them to fortify each other or to give false testimony; and, even if the matter complained of should be regarded as a technical error we would not be authorized to reverse the judgment therefor, unless it was prejudicial to the substantial rights of the defendant. For other cases dealing with this question see Druin v. Commonwealth, 124 S. W. 856, Greer v. Commonwealth, 85 S. W. 166, 27 Ky. Law Rep. 333, and Baker v. Commonwealth, 106 Ky. 212, 50 S. W. 54, 20 Ky. Law Rep. 1778.

it might consider this complained of testimony and we are confident that it was not error to admit it when accompanied with the admonition.

[5, 6] The (3) error complained of is so wholly immaterial as to scarcely require our consideration. The defendant's attorney asked him while on the stand where he was reared, and whether his parents were living or dead. For some reason the commonwealth objected to this testimony, which objection was sustained. There was no avowal as to what the witness would say had he been permitted to answer the questions, and for this reason alone the error, if material, could not be considered by us. Under no aspect of the case could it be said that the refusal of the court to allow the questions to be answered was prejudicial to defendant's rights. For aught that appears it may have been prejudicial to permit answers to be made.

they submit in substantial form the law gov erning the right of the defendant under the facts and circumstances of the case.

[9] In considering the (5) error relied on, it may be briefly disposed of upon the ground that the witness Bradley is not shown by the testimony of any one to be an accomplice in the crime for which the defendant was tried. The fact that he was indicted jointly with the defendant does not make him an accomplice if the testimony in the case shows that he was not one. Thus in Gregory's Kentucky Criminal Law, p. 824, it is said:

"The mere fact that one person is indicted for, or charged with, a crime in connection with another does not make him an accomplice, and whether or not he is an accomplice is a fact to be determined, like any other fact, from the evidence."

v. Commonwealth, 157 Ky. 325, 163 S. W. 204, and Nicoll v. Commonwealth, 169 Ky. 491, 184 S. W. 386.

In the Deaton Case, upon this point, it is said:

"It is erroneously assumed by appellants that they [commonwealth's witnesses] were accomplices. The fact that they were so indicted does not make them so. Ochsner v. Commonwealth, 128 Ky. 761 [109 S. W. 326, 33 Ky. Law Rep. 119]; Sizemore v. Commonwealth, 6 S. W. 123, 10 Ky. Law Rep. 123; Nelms v. Commonwealth, 82 S. W. 260 [26 Ky. Law Rep. 604]. That fact, like any other fact, is to be ascertained from the evidence."

The text is supported by the cases from [7, 8] The (4) ground, complaining of the instructions given to the jury, is based upon this court of Sizemore v. Commonwealth, 6 the contention that they deprive the defend- S. W. 123, 10 Ky. Law Rep. 1, Smith v. Comant of the right of the exercise of self-de-monwealth, 148 Ky. 69, 146 S. W. 4, Deaton fense, whether he knew the deceased was an officer and attempting to arrest him or not, but we do not so construe the instructions. Those which it is claimed contain the vice complained of are numbers 2 and 5. They are too long to insert in this opinion. Suffice it to say that under instruction No. 2 the jury were not authorized to convict the defendant unless they found from the evidence that "at the time of such shooting he knew or had notice that said Charles W. Hatfield was a police officer," and No. 5 did not deprive defendant of his ordinary right of self-defense unless he "had notice that said Hatfield was a police officer." The court did not submit in any of the instructions the duty of Hatfield to inform the defendant of the fact that he was about to be arrested, or the nature of the offense with which he was charged, for the two manifest reasons: (a) That according to all the testimony the policeman did not have time nor opportunity to so inform the defendant (Hickey v. Commonwealth, supra, and cases therein referred to); and (b) that defendant knew that he had just committed a felony and was at that time

[10] Furthermore, the rule is that, where the accused testifies to substantially the same facts as does the alleged accomplice, he is not prejudiced if the court failed to give the instruction concerning the testimony of an accomplice. Finch v. Commonwealth, 92 S. W. 940, 29 Ky. Law Rep. 187. It is therefore apparent that this ground of complaint is without merit.

The alleged misconduct of the attorney making the closing argument to the jury, of which complaint is made in ground (6) con

fleeing from apprehension. Besides, the
testimony of Bradley, who is the only witness
who told what the deceased and the defend-sists in these remarks:
ant said at the time, contains facts which are
not denied, and which show that defendant
knew the purpose which the officer had in
view when he said, "Stop there a minute,"
after which defendant said, "Stop, hell,"
and immediately fired. No reasonable person
can read this record without being convinced
beyond doubt that the policeman was killed
to prevent the arrest, and at a time when de-
fendant knew that he was a policeman and
intended to arrest him. While the instruc-

*

"They (the defendants) knew they were going to be arrested. Policeman Hatfield said: 'Hold on there, boys. The Bragg hotel has been robbed; you fill the bill. Wait until I investigate.' We do not ask him if he stole those we knew he did it. pistols in Huntington; He pleaded not guilty, and compelled us to prove his guilt, and after we had proven he fired the shot that killed Charles Hatfield, his attorney took him into the room there (pointing to the jury room), and told him that it would not do for him to contradict all those witnesses,

(216 8.W.)

say he did it in self-defense, and did not know Hatfield was a policeman."

udicial error.

[11] The last remark complained of was withdrawn by the attorney when the objection to it was made. The defendant's attor ney at once denied the fact contained in the statement, all of which occurred in the presence of the jury, and the court said, "The jury will try the case on the law and the evidence alone." The proper latitude to be allowed an attorney in his argument to the jury has frequently been before this court, and in each case it has been held that reasonable inferences to be drawn from the facts and circumstances might be made and commented upon, and that to do so was not prejThe law in such cases recognizes the frailty of human nature, and that in the heat of argument inappropriate remarks are liable to be made; but unless they are altogether unfounded from any fact or circumstance appearing in the case, and manifest such a wide departure from legitimate deductions as to be at once poisonous and prejudicial,, a reversal will not be ordered for that reason alone. But if the complained of remarks are entirely foreign to anything appearing in the case, and if they were made for the purpose of taking an undue advantage, and such was their probable effect, it is the duty of the court to reverse the judgment rendered upon a verdict so obtained.

In husband's divorce suit, denial in wife's answer of the jurisdictional facts with reference to the county of the residence of the parties, under Ky. St. § 2120, was in effect a plea to the jurisdiction, and required proof of such facts under Civ. Code Prac. § 422, though wife did not in terms object to court's jurisdiction. 2. DIVORCE 124-INSUFFICIENCY OF EVIDENCE TO PROVE ALLEGED RESIDENCE OF PLAINTIFF.

In husband's divorce suit against nonresident wife, evidence held insufficient to prove husband's residence in county in which action was brought, required by Ky. St. § 2120, and Civ. Code Prac. § 422.

Appeal from Circuit Court, Campbell County.

Action by L. L Kinser against L. L. H. Kinser. Judgment of dismissal, and plaintiff appeals. Affirmed.

Howard M. Benton, of Newport, and C. F. See, Jr., of Louisa, for appellant.

Fred M. Vinson, of Ashland, for appellee.

[12] We do not find the remarks complained of in this case to belong to the latter class. While the attorney for commonwealth in some of them assumed facts for which there was no express testimony, yet they were CLAY, C. Plaintiff, L. L. Kinser, appeals fairly deducible from the circumstances, and from a judgment of the Campbell circuit besides, the court directed the jury in sub-court dismissing his petition for an absolute stance not to be influenced by them, but to divorce. The petition was filed on May 14, "try the case on the law and the evidence 1918, and is as follows: alone."

It might be safely said that no trial is sides in Campbell county, in the state of Ken"The plaintiff, L. L. Kinser, says that he refaultlessly conducted, and if the proceedings tucky, and has resided in Kentucky for the past of the courts in conducting tedious and ex-five years. The plaintiff says that on the 3d pensive trials could be set aside for every technical error, however nonprejudicial, there would be no end to litigation, and the commonwealth would be bankrupted in an effort to apprehend and convict offenders.

day of March, 1898, in the county of Monroe and the state of Tennessee, he and the defendant, L. L. H. Kinser, were united in matrimony, in due accordance with the laws of the state of Tennessee were made man and wife; that

he lived with the defendant as his wife until on or about the 10th day of May, 1913, at which time they separated. Plaintiff further says that they have lived separate and apart without any cohabitation during the last five years past, he having had an actual residence

Our conclusion is that the judgment should not be reversed for the alleged error now under consideration. The penalty in this case being the severest known to the law, we have given thorough consideration to each of the grounds urged for a reversal of the judg-in the state of Kentucky during all that time. ment, and are unable to say that any of them furnish just cause for setting it aside. The Legislature in fixing the penalty of death as punishment for murder realized that there are occasions where the magnitude of the crime authorized its infliction. It is not for us to comment on the wisdom or lack of wisdom of this law, but to administer it when

The plaintiff further says that the defendant is a nonresident of this state, and, as the plaintiff believes, is now absent from this state, and that she resides in the state of Tennessee, and her post office is Knoxville, Tenn.

"Wherefore the plaintiff prays for a judgment for divorce from the defendant, L. L. H. Kinser, and for all proper relief both general and special, and will ever pray."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

727, 205 S. W. 951.

On November 16, 1918, plaintiff took the deposition of Mrs. Rose Lepper pursuant to written notice served on Hubbard Schwartz, and also on the county attorney. Mrs. Lepper testified that she lived in Newport, Ky.; that she had been acquainted with plaintiff since August, 1917, when he rented an apartment from her at 617 Washington avenue, Newport, that since that time he had lived continuously in Newport. On cross-examination by Mr. Schwartz she stated that plaintiff was connected with the American Tobac co Company; that his business required him to be away from home a portion of the time, and that he visited different places in Kentucky; that during all that time he had kept his apartment on Washington avenue, and that she knew nothing about defendant's whereabouts. On cross-examination by Mr. McLaughlin she testified that defendant had never been at her home during the time that plaintiff lived there, and that she had never seen the defendant. On redirect examination she stated that plaintiff had lived separate and apart from his wife without cohabitation during the period that she had known him.

A corresponding attorney was appointed to [rence county, and she had never known of his warn defendant of the pendency of the action. living with the defendant. W. J. Roberts, On July 15, 1918, defendant filed a verified the circuit court clerk of Lawrence county. answer in two paragraphs. In the first para- testified that in a suit filed in that court by graph she denied that plaintiff resided in defendant against plaintiff there was a writCampbell county, Ky., or that he had re- ten contract signed by plaintiff and defendant sided in Kentucky for the past five years, or dated May 10, 1913, reciting that the parties that he had an actual residence in the state were separated, and that the husband was by of Kentucky during the last five years. She the agreement making provision for the further denied that either her residence or separate maintenance and support of his post office address was Knoxville, Tenn. In wife and their children. Witness further testhe second paragraph she pleaded the resi- tified that plaintiff had been tried and condence of plaintiff at the time of the filing of victed of bigamy, but that the judgment had the suit was in Lawrence county, Ky.; that been reversed by the Court of Appeals in an he was under indictment in that county for opinion rendered October 25, 1918, and rethe crime of bigamy, committed by his marry-ported in Kinser v. Commonwealth, 181 Ky. ing Ida Smith in that county on July 5, 1913, when at, the time he was married to defendant; that his effort to secure the divorce was and is merely to show, or attempt to show, to a jury that he is now divorced, in the hope that the verdict of the jury will be tempered with sympathy and the term of years therein imposed be lessened; that by virtue of such being the state of the case, a court of equity should not interpose in his behalf. On November 8, 1918, plaintiff filed in open court an amended petition, stating defendant's full given name, and alleging that defendant was then a nonresident of Kentucky and absent therefrom, and that her attorney of record, F. M. Vinson, was in United States military service, and absent from the state, and that if defendant had engaged another lawyer to represent her in the action, neither plaintiff nor his counsel was aware of it. At the same time, plaintiff's motion for the court to appoint some person on whom to serve notice for taking depositions was sustained, and Hubbard Schwartz was appointed for that purpose. Pursuant to notice served on Hubbard Schwartz, plaintiff took the depositions of several witnesses in Louisa, Ky., on November 14, 1918. One of the witnesses, T. J. Branham, testified that he knew plaintiff, and that plaintiff had lived in Kentucky for five years next before the 10th day of May, 1918; that during that time plaintiff had not lived or cohabited with the defendant to the knowledge of witness; that since he had known plaintiff, plaintiff claimed Lawrence county, Ky., as his home, and had always voted there, and that defendant had stated to witness that she lived at Knoxville, Tenn. Mrs. Linda Branham testified that she had known plaintiff more than five years; that during all that time he claimed his residence in Lawrence county, and had never lived with or cohabited with the defendant. She further stated that plaintiff had told her that he was always going to make Kentucky his home. Ethel Stuff testified that she had known plaintiff since April 13, 1913; that she first got acquainted with him at Louisa; that during all

[1] Plaintiff insists that it was not necessary for him to prove that he resided in Campbell county when the suit was brought, because the defendant waived the jurisdiction of the Campbell circuit court by her failure to demur or to answer to the jurisdiction. Under our statute an action for divorce must be brought in the county where the wife usually resides, if she has an actual residence in the state; if not, then in the county of the husband's residence. Section 2120, Kentucky Statutes. And notwithstanding the fact that the Code provides that the residence of the parties must be proved by one or more credible witnesses (Civ. Code Prac. § 422), we have nevertheless held that where the defendant in a divorce suit is actually summoned or appears and fails to plead or object to the jurisdiction of the court on account of the suit's not being in the county of her residence, she waives the jurisdiction, and the court will

(216 S.W.)

termine the case upon its merits. Johnson v. Johnson, 12 Bush, 485; Tudor v. Tudor, 101 Ky. 530, 41 S. W. 768, 19 Ky. Law Rep. 747. But in view of the Code provision we are not inclined to extend the doctrine of waiver any further. Though it be true that the defendant did not in terms object to the jurisdiction of the court, the first paragraph of her answer contained a denial of the jurisdictional facts with reference to the residence of the parties. That being true, it was in effect a plea to the jurisdiction, and was therefore sufficient to challenge the right of the court, to proceed unless the plaintiff proved the jurisdictional

facts.

aggressor was that of defendant himself, court's
refusal, upon disappearance of witness who
would have corroborated defendant's testimony,
and who had been sworn and placed under the
jury or postpone trial until it could be ascer
rule as a witness for defendant, to discharge
tained that witness could not be produced and
then to discharge jury was prejudicial error.
3. HOMICIDE 189–EVIDENCE of Bad FEEL-

ING BETWEEN DEFENDANT AND DECEASED.

In murder prosecution, where evidence for the commonwealth tended to show defendant was the aggressor, while evidence for defendant showed deceased brought on the difficulty by his acts and declarations, the state of feeling existing between defendant and deceased, as evidenced by their declarations and conduct previous to killing, was admissible for purpose of showing who commenced the difficulty.

CRIMINAL LAW ~673(3)—ADMONITION AS

TO PURPOSE OF IMPEACHING EVIDENCE.

credibility or the moral character of any witIf evidence is introduced impeaching the ness, the court may, on his own motion, and should, if so requested, give the usual admonition of the purpose for which such impeaching or attacking evidence is allowed.

[2] The depositions were all taken by plaintiff. Mrs. Lepper's testimony is to the effect that plaintiff rented an apartment from her in August, 1917, and had occupied the apartment from that time on when not out on the road for the American Tobacco Com-4. pany. On the other hand, two or three of the witnesses stated that plaintiff had always lived in Lawrence county, and had claimed that county as his home, and one of them stated that he had voted there. No one testified that plaintiff went to Newport to make his home there, or that he ever claimed that his home was there. In view of the positive evidence of his own witnesses that he always claimed Lawrence county as his home, we are clearly of the opinion that the mere fact that he rented an apartment in Newport and occupied it when not out on the road was not sufficient to establish his residence in Campbell county. That being true, he was not entitled to bring his suit there, and the court did not err in dismissing the petition.

Judgment affirmed.

(186 Ky. 163)

LAY V. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 5, 1919.)

1. CRIMINAL LAW ~600(2)—AFFIDAVIT AS TO TESTIMONY OF ABSENT WITNESS ON APPLICATION FOR CONTINUANCE.

Ordinarily it would not be reversible error for court to compel defendant to go to trial in the absence of a witness who did not appear in answer to a summons, or who absented himself after trial had commenced, if an affidavit of what he would testify to if present was permitted to be read as his deposition.

2. CRIMINAL LAW

Appeal from Circuit Court, Whitley County.

J. S. Lay was convicted of manslaughter, and he appeals. Reversed, with directions. Henry C. Gillis and Stephens & Steely, all of Williamsburg, for appellant.

Charles H. Morris, Atty. Gen., and Beverly M. Vincent, Asst. Atty. Gen., for the Commonwealth.

CARROLL, J. The appellant, Lay, under an indictment charging him with the murder of A. D. Ausbrook, was found guilty of manslaughter, and his punishment fixed at confinement in the state penitentiary for six years. From the judgment on the verdict he prosecutes this appeal, complaining that many errors prejudicial to his substantial rights were committed by the trial court.

A brief statement of the facts showing the relations between Lay and Ausbrook, as well as the circumstances immediately surrounding the homicide, will be helpful to an understanding of the disposition that should be made of this chief assignment of error.

A bitter enmity had existed between Lay and Ausbrook for some months before Ausbrook was killed, and threats of violence were made by one against the other; al596(2), 867-REFUSAL TO though it should be said that the record

DISCHARGE JURY OR POSTPONE TRIAL UPON
DISAPPEARANCE OF WITNESS.

In murder prosecution, where there were three eyewitnesses for state in support of the ory that defendant was aggressor, and where only testimony, other than by affidavit, in support of defendant's theory that deceased was

shows that the threats of Ausbrook were

many times more numerous than those of Lay. At any rate they were enemies, and apparently each was anticipating that he might be at any time attacked by the other. The causes that produced the bad feeling be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes