(248 S. W.) had tried to sell him on that afternoon lying by him, or in his hands. The neighbors had gotten there, and deceased tried to walk to the house, but was too weak from the loss of blood, and they carried him to it, but before that the mother of deceased had gotten the pistol and carried it to the house. No one saw any other weapon, except a small pocket knife, which was closed and in the pocket of deceased. The commonwealth offered to prove a statement by deceased which he then and there made, but the court excluded it. We do not know what it was, since there was no avowal. The defendant testified that when they got to the buggy shed they commenced talking in the usual way, but does not state any subject discussed. Finally the subject of purchasing the pistol was brought up, and deceased said that he would like to try it, and that if he was pleased with it he would give $30 for it, provided Lacey would accept moonshine whisky as part pay; that he then sug. gested that it was too dark to try the pistol, | but told Lacy to let deceased have it and try it at his convenience, which was agreed to. Whereupon Lacey handed the pistol to defendant, and defendant passed it to deceased, at which time defendant suggested that it was time they were going, and he turned to leave, when he heard deceased call his name, and in turning to face him the latter again brought up the subject about the stealing of the whisky, and again said that the accusation was a damn lie, and that he could not live under it; that deceased started to raise the pistol gotten from Lacey, and defendant clinched him and grabbed the muzzle of the pistol with both of his hands, and that he then released his right hand and drew his pistol, which he claimed to be still carrying. About that time he said he remarked to Lacey, "Knock him in the head, if you don't he is going to kill me," but that Lacey made no move, and then "his gun fired, and then my gun fired. There wasn't but mighty little difference between them, and then he said, 'You have killed me!'" whereupon defendant started away and deceased fired at him, and defendant fired another shot at deceased, and then went to his home. Lacey testified, in substance, the same, except he said that deceased said to him, "Knock him in the head; if you don't I will have to kill him." The latter witness remained on the scene until all the shooting was over, and left deceased lying in the road with his (witness') pistol, which he did not take with him. Witness went to the home of Daniel and got there first, but they remained there only a short time, and went to the church not far away, where they remained about 15 minutes and then went a distance of about five or six miles, where they spent the night, and the next morning they procured a mule and a horse, and defendant went away and finally landed in Lexington late Sunday afternoon. 248 S.W.-33 He passed through Winchester, where deceased was carried, but made no inquiry concerning his condition. He was arrested in Lexington and put in jail, where he remained until his trial. It is proven by a witness for the commonwealth that defendant, about 7 o'clock that night and after the shooting, came to his house and tried to borrow a pistol. Either that night or the next morning, he told two witnesses who testified for the commonwealth that he "guessed" or "expected" that he had killed deceased the night before, and that the reason he did so was that deceased was coming onto him with a butcher knife, and he exhibited to one witness a wound on one of his hands which he said had been inflicted with that weapon. There was testimony showing that, if defendant was not interested in the moonshine still, he frequently visited it, and was a liberal patron. The commonwealth impeached the character of defendant, and he did not attempt to sustain it. If defendant had a pistol on that occasion, he testified that it was a 32, whereas the German pistol was a much larger one, and none of the witnesses who testified as to hearing the shots stated any difference in the reports, although defendant admits that he fired his pistol as many as two times. One theory of the commonwealth was that Lacey's pistol was the only one there, and that defendant shot the deceased with it, and the latter succeeded in taking it away from him and fired the shots he made, and that theory is circumstantially supported to some extent. [2, 3] The commonwealth offered to prove a dying declaration by the hospital physician which, as testified to by the witness, was: "He said: 'No, the man came to my house for a shave, and after I shaved him, he asked me to go to the barn and take a drink, and then he told me he was going to shoot me, and he proceeded to shoot me.' He said he wasn't armed, and wasn't expecting to have any trou ble." The court excluded it, presumably upon the ground that it was not made in extremis. However, if that was the ground, we think the court erred, since the physician testified that it was made at about 3:30 o'clock on the same afternoon when deceased died, and that he stated at the time that "he felt like he was going to die," and after the doctor had told him that he would die from the effects of the wound. Since, however, that declaration was not admitted, we cannot consider it on this appeal, but from the brief outline of the evidence which we have made it is apparent that it was sufficient to submit to the jury the issue of defendant's guilt or innocence, and likewise sufficient to sustain the verdict returned, and ground (1) must therefore be denied. [4] 2. Under this ground it is vigorously insisted that the court erred in permitting the commonwealth to prove the business or 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 administracorn 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 comneously 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. Comcharacter 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 as purely character testimony, which under the rule relied on may not be introduced until the character of the one involved is attacked. We, therefore, regard this objection as immaterial. 3. The alleged newly discovered evidence is that of two witnesses, who said in their affidavits that shortly prior to the difficulty deceased told them "that there were two men who had been interfering with his business, and that he would have to get rid of them, and that he intended to do it," and that one of them was the defendant and one of them was John Rogers. [5, 6] Defendant filed an affidavit for continuance on account of the absence of material witnesses, one of whom was Wesley Mayfield, and in that affidavit he stated that the absent witness would testify, if present, to identically the same threat made a short while before the difficulty, which affidavit the commonwealth consented might be read as the testimony of the witness, but defendant did not do so or offer to read it. He thus had in his possession that same character of testimony which he or his counsel did not regard of sufficient importance to introduce. We think under the circumstances his case should be treated as though it was introduced, in which event the affidavits of the discovered witnesses would be cumulative on the issue as to threats generally, but not as to any specific one, and for which character of testimony a new trial will not ordinarily be granted, unless it is of such an overwhelming nature and upon such a material point as to render it reasonably probable that a different verdict would be returned. [7, 8] Moreover, the rule applied in this court is to hesitatingly grant new trials upon this ground because it is one which may [9, 10] 4. Lastly, it is insisted that the court failed to instruct the jury upon the whole law of the case, and that he should have given an instruction on accidental shooting, and in support of this contention the cases of Eastridge v. Commonwealth, 195 Ky. 126, 241 S. W. 806, Wayne v. Commonwealth, 154 Ky. 698, 159 S. W. 548, and Crum v. Commonwealth, 196 Ky. 807, 245 S. W. 501, are relied on. Other later cases on the same point are Davis v. Commonwealth, 193 Ky. 597, 237 S. W. 24, and Terrell v. Commonwealth, 194 Ky. 608, 240 S. W. 81. The rule as to the duty of the court in instructing the jury, as stated in the Davis Case, supra, is: "That the law applicable to every state of case supported by the evidence to any reasonable degree should be given to the jury is an axiom, but it is equally true that the law applicable to a state of case which the evidence in an instruction to the jury, as the questions at does not conduce to support need not be given issue would not be elucidated by instructions on abstract legal principles not supported by the facts, though such an instruction is not always held to be prejudicial." [11] In all of the cases where it was held that the instruction on accidental shooting was proper, it appeared from the evidence that the defendant, when he fired the fatal shot, did not intend to do so, although he may have been engaged at the time in the reckless handling of firearms. In this case defendant not only stated to witnesses who testified for the commonwealth that he had killed, or "guessed he had killed," deceased, but he was asked, "Were you conscious that you were shooting your pistol, pulling the trigger, or whatever you were trying to do?" and answered, "I was trying to;" and at another place in his testimony he stated that he intentionally fired his pistol. There is there (248 S.W.) fore no room for the contention that defendant should be exonerated upon the ground that he accidentally did the shooting of which he is charged. But it may be insisted that his testimony furnished sufficient grounds for the jury to believe that deceased shot himself with Lacey's pistol, which he at the time had in his possession, according to the testimony of defendant. In addition to his testimony, which we have herein before inserted, he was asked: "Do you know whether he was shot with your pistol, or the one he had? A. No, sir; I do not." He made no claim anywhere in his testimony that deceased shot himself, and the above question and answer carries with it but a vague hint that deceased by an unsupported and remote possibility may have shot himself. He describes no position of the pistol which deceased had that would lend color to that contention; on the contrary, he at the time, according to his own testimony, had the muzzle of the pistol of deceased in one of his hands, and to hold that such testimony would authorize a reversal of the judgment on the ground that it was sufficient to support the theory of accidental shooting so as to call for an instruction upon that issue would be but trifling with justice, and would tend to justly bring the administration of the criminal law into disrepute. We are unwilling to give our indorsement to it, and hold that the evidence relied on in support of it did not do so "to any reasonable degree," and that the court did not err in failing to give the instruction contended for. Finding no error prejudicial to the substantial rights of the defendant, the judgment is affirmed. JOHNSON COUNTY GAS CO. v. STAF. FORD. SAME v. PENDLETON et al. (Court of Appeals of Kentucky. March 9, 1923.) I. Gas 14(2)-Town board of trustees can contract with gas company to increase rates permitted by franchise. exceeding 20 years, and that before granting. the franchise or privilege the municipality shall first, after due advertisement, receive bids therefor publicly, does not require an advertisement for bids before a town can make a contract with reference to an existing franchise. 3. Municipal corporations 683(2)-Increase of rates permitted by franchise is not "grant of franchise" within Constitution. The enactment of ordinances amending an existing gas franchise so as to increase the rates which the company is authorized to charge during the existence of the franchise is not the granting of a franchise within Const. § 164, requiring an advertisement for bids before any franchise is granted. 4. Gas 14(3)-Franchise can permit charge for meter service. Since there is no statutory provision prohibiting a gas company, when authorized by its contract, from charging a meter rent in addition to the other charges, a town can amend a gas franchise ordinance so as expressly to permit the meter charge. 5. Gas 14(1)-Public interest in preventing bankruptcy of gas company is consideration for granting increase of rates. Where it appeared that a gas company was losing money and could probably not continue to operate, or would be forced into bankruptcy, if the rates were not increased, the interest of the public in continuance of the service was a good and valid consideration for the enactment by the board of trustees of ordinances amending the franchise so as to permit the company to charge increased rates. 6. Evidence 83 (2)-Question of consideration for franchise is for contract making body in absence of fraud. The presumption is that municipal authorities acted in good faith in amending a gas franchise so as to permit the charging of increased rates, and the question of consideration for such amendment, in the absence of fraud or such flagrant misconduct as indicates fraud, is with the contract making body of the municipality. 7. Evidence 83 (2)-Rate fixed by municipal body presumed just. There is a presumption that the municipal body empowered by law to make contracts for the supply of gas would make a contract only for a just and reasonable rate. 8. Gas 14(1)-Evidence held to show increased rate granted by board of trustees was just. It is within the power of the board of trustees of a town to pass ordinances amending a 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 inpany 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 683 (2)-Consti-war years, held to show that increased rates granted by ordinances amending the franchise tution does not require advertisement for bids were just and reasonable. before contracting with reference to franchise. 9. Gas 14(1)-Factors entering into determination of reasonable rate stated. Const. § 164, providing that no municipality 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 r the investors to a fair return on their money, since their control has been largely taken over by the municipality, the present value of the company's plant, the quantity of gas consumed, the cost price of the plant, and the cost of the gas, the fair and reasonable expense of operating the plant, considering the economic conditions at the place of operation, and, based on all of these considerations, the company is entitled to such return in the form of gross profits as will meet these amounts and furnish a fair return and a replacement fund which will assure a return of the original investment at the end of the life of the franchise. 10. Gas 14(1)-Fair return on investment and percentage of replacement vary with lo calities. was granted to him, his heirs, associates, and assigns. It was provided in the franchise that the as a condition of the exercise of the rights, purchaser, his heirs, associates, and assigns, privileges, and grants contained therein, or any of them "shall furnish for public and private use for the said town and its inhabitants natural gas for the purpose aforesaid at a price which in no event is to exceed the rate of thirty-eight cents per one thousand cubic feet for natural gas, with a discount of three cents per one thousand cubic feet if paid at the office of the purchaser or assigns in the town of Paintsville on or before the tenth of the month following that in which the gas is consumed." What is a fair return upon an investment in 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 or risk involved in the particular kind of business.ganized, to which an assignment was made 11. Gas 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. Under Ky. St. § 3704, subsec. 1, giving the board of trustees of towns of the sixth class power to pass ordinances not in conflict with the Constitution or laws of the commonwealth, or of the United States, and subsection 7, empowering them to perform all other acts necessary to carry out the provisions of the chapter and to enact and enforce all other local, police, sanitary, and other regulations as do not conflict with the general laws, the board of trustees has authority to fix by ordinance reasonable rates which may be charged by a gas company under its franchise. Appeal from Circuit Court, Johnson County. Separate actions by G. M. Stafford and by W. J. Pendleton and others against the Johnson County Gas Company. From judgments granting the injunction sought in each case, defendant appeals. Reversed in each case, with directions to set aside the injunctions and dismiss the petitions. Frederick Howes, of Paintsville, for appellant. W. H. Vaughan & Son, of Paintsville, for appellees. Appellant was not a producer of natural gas, but was organized primarily for the purpose of distributing gas under the terms of the franchise. Accordingly shortly after its organization it proceeded to install its plant in Paintsville, together with all the machinery, equipment, and appliances necessary to its operation, and to lay throughout the town of Paintsville its mains and connecting pipes. It likewise became necessary for it to lay about six miles of a main pipe so as to connect with the mains of a producing gas company, from which it was to purchase under the terms of a contract its supply of gas. The capitalization of the company was $50,000, but there was actually paid in only $25,040 in cash, all of which was expended in installing the plant, purchasing the machinery and equipment, and laying the pipes and mains referred to. The balance of the capital stock of $50,000 was represented by the franchise and the contract which Rowland had with the producing gas company prior to the organization of the corporation. The gas company continued to operate under the terms of the original franchise for approximately eight years and until September, 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 direct- 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 gas for heating and lighting purposes, carry-provision, however, that the minimum charge ing with it the right to the purchaser to lay, maintain, and operate gas pipes in the town for that purpose. Thereafter such franchise was sold, and W. J. Rowland became the purchaser, and on the 1st day of August, 1912, the franchise shall be embraced in and be a part of the flat maximum rate of 40 cents per 1,000 cubic feet, meaning thereby, as we interpret it, that both the flat maximum rate and the minimum meter rate should not be charged against a customer at one and the same time. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) The company only operated under this amendatory act for about two months and until November, 1920, when the board of trustees passed a second amendatory ordinance wherein it was provided that the company might charge a meter rate of $1 per month for each meter furnished, and might charge not to exceed 35 cents per 1,000 cubic feet for gas consumed during the months of January, February, and March of each year, and not to exceed 40 cents per 1,000 cubic feet of gas consumed in the remaining nine months of each year. In each of the amendatory ordinances, it was further provided, in the event the gas company or its assigns should at any time in the future secure the gas at a lower rate than they were then paying, the charges fixed in the amendatory ordinances should then be reduced one-half of the difference between the price then being paid and the lower future price at which the same might thereafter be secured. feature different from the precise question raised and considered in the case of Lutes v. Fayette Home Telephone Co., 155 Ky. 555, 160 S. W. 179. That was an action seeking to have it declared that an amendatory ordinance and contract entered into by the city council of Lexington with the telephone company, whereby the latter might charge during the life of the original franchise higher telephone rates than were specifically fixed in the original franchise and contract, was invalid and beyond the power of the city council. In that case not only was it held that the city through its legislative body might during the life of the franchise contract to change the scale of prices theretofore fixed by it and a public service corporation, but it was distinctly held that a citizen of such municipality has no vested right in such scale of charges so agreed upon, and that the 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 individual plaintiff, while the other is by one or more taxpayers suing for their own benefit and the benefit of other residents of the town similarly situated. The two actions, however, in their essential features, raise the same questions. They were heard to gether in the lower court, and will be here. The lower court granted the injunction sought in each case and enjoined the gas company from charging or collecting from the citizens of the town during the life of the original franchise any rate in excess of the rate fixed in the original franchise, and held each of the amendatory ordinances to be void and of no effect. On this appeal by the gas company the following questions are raised: In this case, as in that, the public service corporation accepted the amendatory ordinances and thereby entered into a new amendatory contract with the municipality. Seeing no difference whatever between that case and this, we will not further elaborate this question. [2] 2. Section 164 of our Constitution provides: "No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due adver tisement, receive bids therefor publicly, and award the same to the highest and best bidder." (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? (2) Was it within the power of the board of trustees to pass the amendatory ordinances putting into effect a higher rate without first offering for sale a new franchise under the provisions of section 164 of the state Constitution? (3) Was it within the power of the board of trustees to fix a charge for meter service? (4) Must there be a consideration shown for the passage of an ordinance increasing charges by public service corporations, or is the question of consideration therefor with the municipal legislative body? (5) Are the rates fixed in the amendatory ordinances just and reasonable? [1] 1. On the first question there is no difficulty. This question is in no essential was equivalent, under the terms of the quoted section, to the granting of a new franchise, and that, as no franchise may be granted until due advertisement and public sale thereof, the amendatory ordinances were void. But an analysis of the language used in that section will readily disclose the fallacy of this view. The inhibition in the first place is against the granting of any franchise or privilege or the making of any contract in reference thereto for a term exceeding 20 years, but in the succeeding sentence, wherein provision is made for the advertisement and public sale, it is only said that such franchise or privilege-not contract or amendatory contract-"shall first, after due advertisement, receive bids therefor publicly, |