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(248 S.W.) had tried to sell him on that afternoon ly-, He passed through Winchester, where de. ing by him, or in his hands. The neighbors ceased was carried, but made no inquiry conhad gotten there, and deceased tried to walk cerning his condition. He was arrested in to the house, but was too weak from the loss Lexington and put in jail, where he remained of blood, and they carried him to it, but be- until his trial. fore that the mother of deceased had gotten It is proven by a witness for the commonthe pistol and carried it to the house. No wealth that defendant, about 7 o'clock that one saw any other weapon, except a small night and after the shooting, came to his pocketknife, which was closed and in the house and tried to borrow a pistol. Either pocket of deceased. The commonwealth of- that night or the next morning, he told two fered to prove a statement by deceased witnesses who testified for the commonwhich he then and there made, but the court wealth that he "guessed" or "expected" that excluded it. We do not know what it was, he had killed deceased the night before, and since there was no avowal.

that the reason he did so was that deceased The defendant testified that when they got was coming onto him with a butcher knife, to the buggy shed they commenced talking and he exhibited to one witness a wound on in the usual way, but does not state any sub- one of his hands which he said had been inject discussed. Finally the subject of pur- ticted with that weapon. There was testichasing the pistol was brought up, and de- mony showing that, if defendant was not inceased said that he would like to try it, and terested in the moonshine still, he frequently that if he was pleased with it he would give visited it, and was a liberal patron. The $30 for it, provided Lacey would accept moon- commonwealth impeached the character of deshine whisky as part pay; that he then sug. fendant, and he did not attempt to sustain it. gested that it was too dark to try the pistol, If defendant had a pistol on that occasion, he but told Lacy to let deceased have it and try testified that it was a 32, whereas the Gerit at his convenience, which was agreed to. man pistol was a much larger one, and none Whereupon Lacey banded the pistol to de of the witnesses who testified as to hearing fendant, and defendant passed it to deceased, the shots stated any difference in the reports, at which time defendant suggested that it although defendant admits that he fired his was time they were going, and he turned to pistol as many as two times. One theory of leave, when he heard deceased call his name, the commonwealth was that Lacey's pistol and in turning to face him the latter again was the only one there, and that defendant brought up the subject about the stealing of shot the deceased with it, and the latter sucthe whisky, and again said that the accusa- | ceeded in taking it away from him and fired tion was a damn lie, and that he could not the shots he made, and that theory is circum. live under it; that deceased started to raise stantially supported to some extent. the pistol gotten from Lacey, and defendant [2, 3] The commonwealth offered to prove clinched him and grabbed the muzzle of the a dying declaration by the hospital physician pistol with both of his hands, and that he which, as testified to by the witness, was: then released his right hand and drew his "He said: 'No, the man came to my house pistol, which he claimed to be still carrying for a shave, and after I shaved him, he asked About that time he said he remarked to me to go to the barn and take a drink, and Lacey, “Knock him in the head, if you don't then he told me he was going to shoot me, and he is going to kill me," but that Lacey made he proceeded to shoot me.' He said he wasn't no move, and then "his gun fired, and then armed, and wasn't expecting to have any trou

ble." my gun fired. There wasn't but mighty little difference between them, and then he said, The court excluded it, presumably upon 'Yon have killed me!'” whereupon defend the ground that it was not made in extremis. ant started away and deceased fired at him, However, if that was the ground, we think and defendant fired another shot at deceased, the court erred, since the physician testified and then went to his home. Lacey testified, that it was made at about 3:30 o'clock on the in substance, the same, except he said that same afternoon when deceased died, and that deceased said to him, "Knock him in the ne stated at the time that "he felt like he was head; if you don't I will have to kill him.” going to die,” and after the doctor had told The latter witness remained on the scene him that he would die from the effects of the until all the shooting was over, and left de wound. Since, however, that declaration was Ceased lying in the road with his (witness') not admitted, we cannot consider it on this pistol

, which he did not take with him. Wit- appeal, but from the brief outline of the eviness went to the home of Daniel and got there dence which we have made it is apparent first, but they remained there only a short that it was sufficient to submit to the jury time, and went to the church not far away, the issue of defendant's guilt or innocence, where they remained about 15 minutes and and likewise sufficient to sustain the verdict then went a distance of about five or six returned, and ground (1) must therefore be miles, where they spent the night, and the denied. next morning they procured a mule and a

[4] 2. Under this ground it is vigorously borse, and defendant went away and finally insisted that the court erred in permitting landed in Lexington late Sunday afternoon the commonwealth to prove the business or

248 S.W.33

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occupation in which deceased was engaged., be easily fabricated and result not only
The witnesses testified that he was a farmer, in delay in the execution of the criminal
and that he cultivated a small acreage in laws, but also frequently in the administra-
corn and a garden, and when not so employed tion of justice, and, unless the facts of the
he hired out to others, and did such work as particular case are such, or the issue upon
he could obtain. It is claimed that such which the discovered testimony relates is so
testimony was, in substance, proof of good material, as to produce the conviction from
character when defendant had not attacked a consideration of the whole record that there
it, and under the rule forbidding such testi- has been a miscarriage of justice and the
mony without a previous attack it was erro- probability that material error has been com-
neously admitted. It seems to us, however, mitted, a new trial will not be ordered upon
that it requires a very great stretch of the that ground. Some of the more recent cases
imagination to warp or bend that testimony so holding are Johnson v. Commonwealth,
so as to classify it as proof of either good 188 Ky. 391, 222 S. W. 106; James v. Com-
character or reputation. The purpose of monwealth, 197 Ky. 577, 247 S. W. 945, and
that testimony was to establish the theory cases referred to therein. In the light of this
of the commonwealth that the deceased was rule, and bearing in mind the apparent
not the owner or operator of the still, but friendliness of the parties just preceding the
that, on the contrary, the defendant was. Its difficulty, the accommodating shaving of the
effect was to show that deceased was en defendant by the deceased just immediately
gaged otherwise than operating the still, and prior, and the fact that defendant did not
it had a tendency to prove that, although it introduce the same character of testimony
might incidentally affect his character in so which was in his possession, we conclude
far as it disproved the fact that he was vio that the court did not err in declining to set
lating the law by operating a still. We can aside the verdict on this ground.
not, however, obtain our consent to treat it (9, 10] 4. Lastly, it is insisted that the court
as purely character testimony, which under failed to instruct the jury upon the whole
the rule relied on may not be introduced un- law of the case, and that he should have
til the character of the one involved is at- given an instruction on accidental shooting,
tacked. We, therefore, regard this objection and in support of this contention the cases
as immaterial.

of Eastridge v. Commonwealth, 195 Ky. 126, 3. The alleged newly discovered evidence 241 S. W. 806, Wayne v. Commonwealth, 154 is that of two witnesses, who said in their Ky. 698, 159 S. W. 548, and Crum v. Common. affidavits that shortly prior to the difficulty wealth, 196 Ky. 807, 245 S. W. 501, are redeceased told them “that there were two men

lied on. Other later cases on the same point who had been interfering with his business, are Davis v. Commonwealth, 193 Ky. 597, 237 and that he would have to get rid of them, S. W. 24, and Terrell v. Commonwealth, 194 and that he intended to do it," and that one Ky. 608, 240 S. W. 81. The rule as to the of them was the defendant and one of them duty of the court in instructing the jury, as was John Rogers.

stated in the Davis Case, supra, is: [5, 6] Defendant filed an affidavit for con “That the law applicable to every state of tinuance on account of the absence of ma case supported by the evidence to any reasonaterial witnesses, one of whom was Wesley ble degree should be given to the jury is an Mayfield, and in that affidavit he stated that axiom, but it is equally true that the law apthe absent witness would testify, if present, plicable to a state of case which the evidence to identically the same threat made a short in an instruction to the jury, as the questions at

does not conduce to support need not be given while before the difficulty, which affidavit issue would not be elucidated by instructions on the commonwealth consented might be read abstract legal principles not supported by the as the testimony of the witness, but defend- facts, though such an instruction is not always ant did not do so or offer to read it. He thus held to be prejudicial." had in his possession that same character of testimony which he or his counsel did not (11) In all of the cases where it was held regard of sufficient importance to introduce. that the instruction on accidental shooting We think under the circumstances his case was proper, it appeared from the evidence should be treated as though it was intro- that the defendant, when he fired the fatal duced, in which event the affidavits of the shot, did not intend to do so, although he may discovered witnesses would be cumulative on have been engaged at the time in the reckless the issue as to threats generally, but not as handling of firearms. In this case defendant to any specific one, and for which character | not only stated to witnesses who testified for of testimony a new trial will not ordinarily the commonwealth that he had killed, or be granted, unless it is of such an over- "guessed he had killed,” deceased, but he whelming nature and upon such a material was asked, "Were you conscious that you point as to render it reasonably probable that were shooting your pistol, pulling the trigger, a different verdict would be returned.

or whatever you were trying to do?" and [7,8] Moreover, the rule applied in this answered, "I was trying to;" and at another court is to hesitatingly grant new trials up-place in his testimony he stated that he in

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(248 S.W.) fore no room for the contention that defend-, exceeding 20 years, and that before granting ant should be exonerated upon the ground the franchise or privilege the municipality shall that he accidentally did the shooting of first, after due advertisement, receive bids which he is charged. But it may be insisted therefor publicly, does not require an adverthat his testimony furnished sufficient

tisement for bids before a town can make a grounds for the jury to believe that deceased contract with reference to an existing franchise. shot himself with Lacey's pistol, which he at 3. Municipal corporations C 683(2)—Increase the time had in his possession, according to

of rates permitted by franchise is not "grant the testimony of defendant. In addition to

of franchise" within Constitution. bis testimony, which we have hereinbefore The enactment of ordinances amending an inserted, he was asked:

existing gas franchise so as to increase the

rates which the company is authorized to charge "Do you know whether he was shot with your during the existence of the franchise is not the pistol, or the one be bad? A. No, sir; I do granting of a franchise within Const. $ 164, re

quiring an advertisement for bids before any He made no claim anywhere in his testi- franchise is granted. mong that deceased shot himself, and the 4. Gas en 14(3)-Franchise can permit charge above question and answer carries with it but

for meter service. a vague hint that deceased by an unsup

Since there is no statutory provision proported and remote possibility may have shot bibiting a gas company, when authorized by its himself. He describes no position of the contract, from charging a meter rent in addipistol which deceased had that would lend tion to the other charges, a town can amend a color to that contention; on the contrary, he gag franchise ordinance so as expressly to per

mit the meter charge. at the time, according to his own testimony, had the muzzle of the pistol of deceased in 5. Gas Emo 14(1)-Public interest in preventing one of his hands, and to hold that such testi

bankruptcy of gas company is consideration mony would authorize a reversal of the judg

for granting increase of rates. ment on the ground that it was sufficient to losing money and could probably not continue to

Where it appeared that a gas company was support the theory of accidental shooting so as to call for an instruction upon that issue the rates were not increased, the interest of the

operate, or would be forced into bankruptcy, if would be but trifling with justice, and would public in continuance of the service was a good tend to justly bring the administration of the and valid consideration for the enactment by criminal law into disrepute. We are unwill- the board of trustees of ordinances amending ing to give our indorsement to it, and hold the franchise so as to permit the company to that the evidence relied on in support of it charge increased rates. did not do so "to any reasonable degree," and 6. Evidence (83(2)-Question of considera. that the court did not err in failing to give tion for franchise is for contract making body the instruction contended for.

in absence of fraud. Finding no error prejudicial to the sub The presumption is that municipal authoristantial rights of the defendant, the judg- ties acted in good faith in amending a gas franment is affirmed.

chise so as to permit the charging of increased rates, and the question of consideration for such amendmeat, in the absence of fraud or

such fiagrant misconduct as indicates fraud, is JOHNSON COUNTY GAS CO. V. STAF. with the contract making body of the municipalFORD.

ity. SAME V, PENDLETON et al.

7. Evidence n83(2)-Rate fixed by municipal

body presumed just. (Court of Appeals of Kentucky. March 9, There is a presumption that the municipal 1923.)

body empowered by law to make contracts for

the supply of gas would make a contract only I. Gas for 14(2)-Town board of trustees can for a just and reasonable rate. contract with gas company to increase rates permitted by franchise.

8. Gas 14(1)--Evidence held to show inIt is within the power of the board of trus

creased rate granted by board of trustees was tees of a town to pass ordinances amending a

just. gas company's franchise so as to increase the

Evidence that a gas company had never rates which might be charged by the gas com- been able to earn a fair return on its actual inpang during the life of the original franchise, vestment in addition to a reasonable replacewhich ordinances, when accepted by the com- ment fund, and that the cost of operation of pany, became a contract for the increased rates. its works had been greatly increased during the 2. Municipal corporations Om683(2)-Consti- granted by ordinances amending the franchise

war years, held to show that increased rates tution does not require advertisement for bids

were just and reasonable. before contracting with reference to fran

9. Gas Em 14(1)-Factors entering into deterConst. $ 164, providing that no municipality

mination of reasonable rate stated. can grant a franchise or privilege, or make In determining what is a reasonable rate a contract with reference thereto for a term for gas, there must be considered the right of

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

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the investors to a fair return on their money, , was granted to him, his heirs, associates, since their control has been largely taken over and assigns. by the municipality, the present value of the It was provided in the franchise that the company's plant, the quantity of gas consum: purchaser, his heirs, associates, and assigns, ed, the cost price of the plant, and the cost of as a condition of the exercise of the rights, the gas, the fair and reasonable expense of operating the plant, considering the economic privileges, and grants contained therein, or conditions at the place of operation, and, based any of themon all of these considerations, the company is "shall furnish for public and private use for the entitled to such return in the form of gross said town and its inhabitants natural gas for profits as will meet these amounts and furnish a the purpose aforesaid at a price which in no fair return and a replacement fund which will event is to exceed the rate of thirty-eight cents assure a return of the original investment at per one thousand cubic feet for natural gas, the end of the life of the franchise,

with a discount of three cents per one thou10. Gas Om 14(1)-Fair return on investment sand cubic feet if paid at the office of the pur

and percentage of replacement vary with lo- chaser or assigns in the town of Paintsville calities.

on or before the tenth of the month following What is a fair return upon an investment in that in which the gas is consumed.” a gas corporation, and what is a fair percentage to be credited to a replacement fund, vary

A similar provision was contained in the greatly in different localities, and depend large contract made with Rowland after the purly on the volume of business transacted, the chase. local customs as to such investments, and the Thereafter appellant corporation was risk involved in the particular kind of business. ganized, to which an assignment was made 11, Gas en 14(2)-Board of trustees for town by Rowland of his franchise and the contract

of sixth class has power to fix reasonable thereunder. gas rates.

Appellant was not a producer of natural Under Ky. St. 3704, subsec. 1, giving the gas, but was organized primarily for the purboard of trustees of towns of the sixth class pose of distributing gas under the terms of power to pass ordinances not in conflict with the franchise. Accordingly shortly after its the Constitution or laws of the commonwealth, organization it proceeded to install its plant or of the United States, and subsection 7, em- in Paintsville, together with all the machinpowering them to perform all other acts necessary to carry out the provisions of the chapter its operation, and to lay throughout the town

ery, equipment, and appliances necessary to and to enact and enforce all other local, police, sanitary, and other regulations as do not con- of Paintsville its mains and connecting pipes. flict with the general laws, the board of trus- It likewise became necessary for it to lay tees has authority to fix by ordinance reasona- about six miles of a main pipe so as to conble rates which may be charged by a gas com- nect with the mains of a producing gas company under its franchise.

pany, from which it was to purchase under

the terms of a contract its supply of gas. Appeal from Circuit Court, Johnson County. The capitalization of the company was $50,Separate actions by G. M. Stafford and by 000, but there was actually paid in only $25,W. J. Pendleton and others against the John- 010 in cash, all of which was expended in son County Gas Company. From judgments installing the plant, purchasing the machingranting the injunction sought in each case, ery and equipment, and laying the pipes and defendant appeals. Reversed in each case, mains referred to. The balance of the capital with directions to set aside the injunctions stock of $50,000 was represented by the franand dismiss the petitions.

chise and the contract which Rowland had Frederick Howes, of Paintsville, for ap- organization of the corporation.

with the producing gas company prior to the pellant.

The gas company continued to operate unW. H. Vaughan & Son, of Paintsville, for der the terms of the original franchise for appellees.

approximately eight years and until Septem

ber, 1920, when the board of trustees of the TURNER, C. In July, 1912, the board of town of Paintsville passed an amendatory ortrustees of the town of Paintsville, then a dinance authorizing the company to charge town of the sixth class, by ordinance directo a minimum rate of $1 per month per meter ed the sale of a franchise granting the right for natural gas furnished, and also authorand privilege of furnishing and supplying ized a maximum charge of 40 cents per 1,000 that town and its inhabitants with natural cubic feet of natural gas furnished, with a yas for heating and lighting purposes, carry- provision, however, that the minimum charge ing with it the right to the purchaser to lay, shall be embraced in and be a part of the maintain, and operate gas pipes in the town flat maximum rate of 40 cents per 1,000 cufor that purpose.

bic feet, meaning thereby, as we interpret it, Thereafter such franchise was sold, and that both the flat maximum rate and the W. J. Rowland became the purchaser, and minimum meter rate should not be charged on the 1st day of August, 1912, the franchise against a customer at one and the same time.

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(248 S.W.) The company only operated under this , feature different from the precise question amendatory act for about two months and raised and considered in the case of Lutes v. until November, 1920, when the board of Fayette Home Telephone Co., 155 Ky. 555, trustees passed a second amendatory ordi- 160 S. W. 179. That was an action seeking nance wherein it was provided that the com- to have it declared that an amendatory orpany might charge a meter rate of $1 per dinance and contract entered into by the city month for each meter furnished, and might council of Lexington with the telephone comcharge not to exceed 35 cents per 1,000 cubic pany, whereby the latter might charge durfeet for gas consumed during the months of ing the life of the original franchise higher January, February, and March of each year, telephone rates than were specifically fixed and not to exceed 40 cents per 1,000 cubic feet in the original franchise and contract, was of gas consumed in the remaining nine invalid and beyond the power of the city months of each year. In each of the amenda- council. tory ordinances, it was further provided, in In that case not only was it held that the the event the gas company or its assigns city through its legislative body might durshould at any time in the future secure the ing the life of the franchise contract to gas at a lower rate than they were then pay- change the scale of prices theretofore fixed ing, the charges fixed in the amendatory or- by it and a public service corporation, but dinances should then be reduced one-half of it was distinctly held that a citizen of such the difference between the price then being municipality has no vested right in such scale paid and the lower future price at wbich the of charges so agreed upon, and that the same might thereafter be secured.

charging of same is wholly a matter of conThese two actions are by citizens of the tract between the legislative body of the town of Paintsville, and each calls in ques- city, which originally had the power to make tion the validity of the two amendatory or the contract, and the public service corporadinances. One of the actions is a personal tion itself. one, and involves only the rights of the in In this case, as in that, the public service dividual plaintiff, while the other is by one corporation accepted the amendatory ordior more taxpayers suing for their own bene- nances and thereby entered into a fit and the benefit of other residents of the amendatory contract with the municipality. town similarly situated. The two actions, Seeing no difference whatever between that however, in their essential features, raise case and this, we will not further elaborate the same questions. They were heard to this question. gether in the lower court, and will be here. [2] 2. Section 164 of our Constitution pro

The lower court granted the injunction vides: sought in each case and enjoined the gas

"No county, city, town, taxing district or company from charging or collecting from other municipality shall be authorized or per. the citizens of the town during the life of the mitted to grant any franchise or privilege, or original franchise any rate in excess of the make any contract in reference thereto, for a rate fixed in the original franchise, and held term exceeding twenty years. Before granting each of the amendatory ordinances to be void such franchise or privilege for a term of years, and of no effect.

such municipality shall first, after due adveron tbis appeal by the gas company the tisement, receive bids therefor publicly, and

award the same to the highest and best bidder." following questions are raised :

(1) Was it within the power of the board Under this provision it is the earnest conof trustees to pass the amendatory ordinanc- tention of counsel for appellees that the es increasing the rates which might be charg-changing of the rates prescribed in the origied by the gas company during the life of the nal franchise by the amendatory ordinances original franchise?

was equivalent, under the terms of the quot(2) Was it within the power of the board ed section, to the granting of a new franof trustees to pass the amendatory ordi- chise, and that, as no franchise may be granthances putting into effect a higher rate with ed until due advertisement and public sale out first offering for sale a new franchise thereof, the amendatory ordinances under the provisions of section 164 of the void. state Constitution?

But an analysis of the language used in (3) Was it within the power of the board that section will readily disclose the fallacy of trustees to fix a charge for meter service? of this view. The inhibition in the first

(4) Must there be a consideration shown place is against the granting of any franchise for the passage of an ordinance increasing or privilege or the making of any contract charges by public service corporations, or is in reference thereto for a term exceeding 20 the question of consideration therefor with years, but in the succeeding sentence, wherethe municipal legislative body?

in provision is made for the advertisement (5) Are the rates fixed in the amendatory and public sale, it is only said that such ordinances just and reasonable?

franchise or privilegenot contract or amen[1] 1. On the first question there is no datory contract—"shall first, after due addifficulty. This question is in 'no essential / vertisement, receive bids therefor publicly,

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