Reversing. Appellees, Adrian Varney, et al., recovered judgment in the Pike circuit court against appellant, Yellow Popular Lumber Company, for $825.00 in an action by them against it for damages growing out of the breach of a contract. There are four of the appellees. One of them testified that for himself and his co-appellees, in January, 1923, he made a contract with appellant through its agent, Dave Davenport, to cut and work the timber on the Ken Williams tract of land at $1.50 per tree....
Affirming. The trial of the appellant, Marshall Yates, in the Boyle circuit court under an indictment charging him with the crime of wilfully, unlawfully and feloniously having carnal knowledge of and sexual intercourse with Lillian Toombs, "a female under the age of eighteen years, not his wife, with her consent," resulted in a verdict of the jury finding him guilty and fixing his punishment at confinement for two years in the penitentiary. He was refused a new trial and the verdict approved...
Reversing. Appellant was convicted of false swearing and his punishment fixed at two years' imprisonment. It is first insisted that the indictment was insufficient. The objection, however, was not raised by demurrer, but by motion in arrest of judgment. There can be no doubt that the indictment charges a public offense, and the rule is that although the alleged offense may be so defectively stated in the indictment as to render it bad on demurrer, still if, considering the facts stated in the...
Affirming in each case. On June 5, 1922, John Wyatt was in charge of a small wagon from which he sold ice cream near the curb on the east side of Jefferson street in Louisville about midway between Hancock and Clay streets. Charles W. Bruck, a newsboy, was standing by his bicycle near the curb eating some ice cream he had bought from Wyatt. An automobile owned by the Hodson Motor Car Company and operated by Joseph Cornish, a salesman of the company, was driven up the street at forty or forty-...
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 125 Sustaining motion for appeal and reversing the judgment. The appellee, L.V. Abbott, was engaged in the business of an architect, engineer and builder in the city of Louisville and was subject to the provisions of our statute known as the "Workmen's Compensation Act" (hereafter referred to as "the act.") He had in his employ the appellee, Thomas J....
Affirming This appeal presents peculiar facts. Appellant, Workman, was indicted for the offense of unlawfully having intoxicating liquors in possession, and from a judgment of conviction he appeals. A boy thirteen years of age found hidden on his father's farm a bottle containing a liquid which he believed to be moonshine whiskey. He called his father and showed him what he had found. The father tasted the contents of the bottle and pronounced it whiskey. Information of the find became noised...
Affirming. Appellant, whom we will call the defendant, charged by indictment with having failed to stop and render aid after striking a child with his automobile, was convicted *Page 64 and his punishment fixed at a fine of $250.00 and a jail sentence of thirty days. On November 12, 1924, a child Mary A. Kennedy, was struck and injured by an automobile at the crossing of Southern parkway and Fairmont avenue, in Louisville, Kentucky. The number of the license plate on this automobile was taken...
Affirming. Appellants, O.W. Witt and others, own a farm in Estill county, Kentucky, containing something over 400 acres. The tracks of appellee, Louisville Nashville Railroad Company, traverse that farm. They sued to compel it to re-establish a farm crossing and a station on the farm which they alleged it had wrongfully discontinued and to compel it to erect certain fences. Alternatively they pleaded that, in the event they were not entitled to that relief, they were entitled to damages in the...
Affirming. Appellant, George Wiser, acquired title to the 12 acres of land involved in this action, under the will of his father, Davis Wiser, who died about 1890. Thereafter he executed a mortgage on same to one Henry Brockman to secure a loan. The loan not having been paid at maturity, Brockman enforced his lien against the property, and became the purchaser at the decretal sale thereof. The sale was confirmed, a deed executed to him for the property by the commissioner on the order of the...
Reversing. This appeal involves a construction of section 4899, Kentucky Statutes, edition of 1922, one of the sections of our Workmen's Compensation Act, together with a construction of such other sections of that act as it may be found necessary to read in connection therewith. The facts are agreed. While employed by appellant appellee was accidentally injured in the course of his employment. They had accepted the provisions of the Workmen's Compensation Act. He was receiving an average wage...
Reversing. Again the appellant has been convicted of manslaughter. His punishment this time being fixed at live years in the penitentiary. A detailed account of this homicide is in 203 Ky. 57 , 261 S.W. 862 . This case was there reversed for one particular error, the other errors, including those noted below, were reserved. The deceased was in a party with whom appellant had had trouble a few moments before the homicide, and was shooting at appellant then. Four witnesses saw him doing so;...
Reversing. One Saturday afternoon in the middle of September, 1923, appellant, Joe Wireman, accompanied by John Bailey, a friend of his, left appellant's home in Magoffin county in appellant's Ford to visit a general store some seven miles away for the purpose of buying some supplies. On their way to this store, they met Bailey's wife, from whom he had been separated. After some parley these two made up their differences and Mrs. Bailey joined the party. On their way to the general store the...
Affirming. Tusco Winchester was indicted in the McCreary circuit court for the murder of James Cogar. On the trial of the case he was found guilty of manslaughter and his punishment fixed at confinement in the penitentiary for twenty years. He appeals. The parties were miners at the Paint Cliff mine in McCreary county. About 1:30 p. m. one day last July, Cogar, Winchester and Cleve Gregory, who was a brother-in-law of Winchester, were at the commissary together. Coger suggested that they go up...
Reversing. Appellant was convicted of murder and his punishment fixed at life imprisonment. The first ground on which a reversal is asked is that the trial court was without jurisdiction because appellant was only 17 years old when the alleged offense was committed. Under our statutes county courts have exclusive jurisdiction of all dependent, neglected or delinquent children, and circuit courts have no jurisdiction to indict or try such children for a violation of the laws of the state unless...
Reversing. Appellant was convicted in the police court of Central City for having intoxicating liquor in his possession. On appeal to the circuit court a similar judgment was rendered and he has appealed to this court. The Commonwealth witnesses were police officers, who, acting under a search warrant, searched the premises of appellant and thereby procured the incriminating evidence adduced on the trial, the admissibility of which is relied on as error. The original affidavit and search...
Affirming. This is an action to enjoin the collection of a school tax levied in May, 1923, for the benefit of the colored *Page 341 graded schools of Murray, Kentucky. The lower court dismissed the petition, and from that judgment the appellants, plaintiffs below, bring this appeal. Two points are relied on in this court for reversal, both of which are essentially based on the same ground, i. e. , that the members of the colored board of education which levied and certified this tax for...
Affirming. Floyd Burris died a resident of Pike county in September, 1921. After his death a paper dated August 19, 1919, was offered for probate in the Pike county court as his last will and testament. Its probate was contested by his two infant daughters, who were 11 and 9 years old respectively. The trial in that court resulted in overruling *Page 732 the motion to probate the paper, because of the court's conclusion that the alleged testator was mentally incapacitated to make it, or that he...
Appeal dismissed. In the late August primary, appellant and appellee were opponents for the nomination for tax commissioner of McCracken county on the Democratic ticket. The appellee, receiving the largest number of votes on the face of the returns, was awarded the certificate of nomination. Appellant thereafter filed this contest proceeding on the sole ground that the appellee was not eligible to fill the office. As the facts were not in dispute, the case was submitted to the trial court on a...
Affirming. The appellants, who were plaintiffs below, were unsuccessful in their efforts to require the appellees to remove certain earth which they had placed in an alleged roadway. Many years ago, Mrs. Harriett Bonnycastle owned a farm adjoining what is now Cherokee Park in Louisville, Kentucky. She lived on this farm, and reached her residence by a winding roadway which ran like a cowpath from her residence in a westerly direction. About the year of 1905 she conceived the idea of subdividing...
Affirming. Appellant was convicted of maliciously shooting and wounding another with intent to kill, and for reversal of the judgment complains (1) of the appointment of Hon. Roscoe Vanover to represent the Commonwealth on the trial of the case pursuant to section 120 of the statutes, and (2) of an alleged substitution during the trial of another for one of the jury selected to try the case. No such objections were urged below during the progress of the trial nor until in the motion and grounds...
