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Cunningham, 72, N.C. 469; Bradley v. State, 31 Ind. 492; LarOS V. Commonwealth, 84 Pa. 200; People v. Smith, 31 Cal. 466; Snow v. Benton, 28 Ill. 306; Guiteau's Case (D.C.) 10 Fed. 161. In discussing the question in the case of State V. Cunningham, Supra, the court said: “When a foundation is laid by some evidence tending to show insanity in the prisoner, it is held admissible in corroboration, and as an additional link in the chain of circumstances, to give in evidence a heredity taint in the blood of a like malady. But it has never been held in this state, or elsewhere, so far as our researches extend, that such evidence is admissible by itself, and without some tes: timony that the prisoner himself was affected by some form of mental alienation. To allow such evidence to go to the jury as independent proof of the insanity of the prisoner would be of the most dangerous consequence to the due administration of criminal justice, since there are but few persons, it is ascertained, who have not had ancestors or blood relations, near or remote, affected by some degree of mental alienation.” Here there was no preliminary independent evidence tending to show that appellant was insane at the time of the homicide, nor was the offered evidence of insanity in his family accompanied by an avowal that it would be followed by such independent evidence. It therefore follows that the Offered evidence WaS not admissible. The jury first returned the following verdict: “We, the jury, find the defendant, Jim Win: burn, guilty, and fix his punishment at 99 years, without a pardon.” Thereupon the court sent the jury back to the jury room to correct its Verdict. The jury returned from the jury room with the following verdict: “We, the jury find, the defendant, James Winburn, guilty, and fix his punishment at confinement in the state penitentiary for life, without pardon.” [4] It is well settled that if the verdict is not Sufficiently Specific Or does not conform to the law it is the correct practice to have the jury reform its verdict before it is discharged. Williams v. Commonwealth, 140 Ky. 34, 130 S. W. 807; Denham V. Commonwealth, 119 Ky. 508, 84 S. W. 538, 27 Ky. Law Rep. 171. The trial court did not err, therefore, in Sending the jury back to the jury room to correct its Verdict. John Crockett v. Commonwealth, 100 Ky. 389, 38 S. W. 676, 18 Ky. Law Rep. 838. [5] But it is argued that the verdict was unauthorized, because no statute gives to the jury the right to fix Such an unusual punishment. In this connection it is argued that the jury might not have agreed upon a verdict at all if the trial court had required them to eliminate from the Verdict the Words “without pardon.” If Speculation of this kind be proper, we might say, with equal plausibility, that the jury might have inflicted even a higher penalty had they not felt free to incorporate the words complained

conclude that the incorporation in the verdict of the Words “Without pardon” did not invalidate the verdict, but constituted a mere recommendation which the court nad the right to disregard aS Surplusage. This has been the uniform rule respecting verdicts otherwise proper, but containing recommendations of the accused to the leniency of the court (State V. Overton, 85 N. J. Law, 287, 88 Atl. 689; People v. Lee, 17 Cal. 76; State V. Stewart, 9 Nev. 120; Penn v. State, 62 Miss. 450; State V. Rosa, 26 La, Ann. 75; State v. Newman, 49 W. Va. 724, 39 S. E. 655), and if a favorable recommendation may be rejected as Surplusage, We perceive no reason Why an unfavorable recommendation may not also be rejected. [6] In this connection the point is also made that the Verdict does not conform to subsection 2, § 257, Criminal Code, providing that a general verdict upon a plea of “not guilty” is “guilty” or “not guilty,” and if “guilty,” fixing the Offense and the degree of the offense and the punishment in cases in which the jury is required to fix the degree of punishment. While it is true that the jury did not in terms find the appellant guilty of murder, yet they were told that if they found him guilty of murder they should fix his punishment at death or confinement in the penitentiary for life. By fixing his punishment at life imprisonment, which they were not authorized to do unless they found him guilty of murder, it is certain from the Verdict that the jury intended to find, and did find, him guilty of murder, and the mere failure of the verdict to state in terms that Such was their finding cannot be regarded as prejudicial error. HayS V. Common Wealth, 14 S. W. 833, 12 Ky. Law Rep. 611. Instructions Nos. 1 and 4 are as follows:

“No. 1. The jury is instructed that if you shall believe from all the evidence in this case, beyond a reasonable doubt, that the defendant, James Winburn, in this county and before the finding of this indictment herein, willfully, feloniously, and of his malice aforethought, and not in his necessary or in his reasonably apparent defense, so shot and wounded Albert Collins as that he then and there died thereby, then he is guilty of willful murder as charged in the indictments, and you ought to so find and fix his punishment at death or at confinement in the state penitentiary for life, in the reasonable discretion of the jury.”

“No. 4. If the jury believes from the evidence that at the time the defendant, Jim Winburn, shot at and wounded Albert Collins, so that he died thereby, if he did so do, he believed, and had reasonable grounds to believe. that he was then and there in danger of death or the infliction of some great bodily harm at the hands of said Albert Collins, and that it was necessary, or was believed by the defendant in the exercise of reasonable judgment to be necessary, to so shoot and wound the deceased in order to avert that danger, real or to the defendant apparent, then you ought to acquit defendant upon the ground of self-defense or apparent necessity therefor.”

[7] Instruction No. 1 is complained of because appellant's right Of Self-defense was made to depend On the danger as it appeared appeared to him. It will be observed, however, that appellant's right to shoot and WOund the deceased in Order to a Vert the danger, as it appeared to him, was fully covered by the instruction on self-defense. Since the two instructions should be read and considered together, it fs apparent that the alleged defect in instruction No. 1 Was cured by instruction No. 4. Since the preponderance of the evidence tends to ShoW that appellant Was guilty of • murder, it cannot be Said that the Verdict is flagrantly against the evidence. Judgment affirmed.

(181 Ky. 189) GRISSON V. COMMONWEALTH.

(Court of Appeals of Kentucky. June 18, 1918.)

1. BANKS AND BANKING C->21 – DRAWING CHECKS—INSUFFICIENT FUNDS—INDICTMENT. In a prosecution under Ky. St. § 1213a, as to drawing, uttering, or delivering any check where there are insufficient funds in the depositary to meet the same, an indictment charging that defendant did unlawfully, willfully, feloniously, and fraudulently draw, utter, deliver, and present a certain check dated September 1, 1917, and drawn on the First National Bank, and delivered the same to C., and represented to said C. that he had funds in said bank to meet such check, when in truth and in fact he had no funds, and he well knew that there were no funds to meet said check in said bank at the time he made such statement and representation to the said C., and the said C. relied upon such statements, and believed in the same, and cashed said check, and paid said defendant the face value thereof, etc., stated a public offense under the statute, and was free from substantial error. 2. INDICTMENT AND INFORMATION & 111(1)– NEGATIVING EXCEPTIONS. An indictment in a prosecution under. Ky. St. § 1213a, as to drawing, uttering, or delivering any check where there are insufficient funds in the depositary to meet the same, need not negative defensive matter contained in proviso; the proviso not being contained in the sentence defining the offense. . 3, BANKS AND BANKING 3:21 - DRAWING CHECK—INSUFFICIENT FUNDS—EVIDENCEDEPOSIT TO MEET THE SAME. In a prosecution under Ky. St. § 1213a, as to drawing, uttering, and delivering any check, where there are insufficient funds in the depositary to meet the same, evidence held to make out a clear case of guilt. 4. CRIMINAL LAW 6:938(1)-NEWLY DISCOVERED-EVIDENCE. A new trial will not be granted for alleged newly discovered evidence, where defendant knew of such evidence in ample time to have produced it at the trial, and the evidence would not have a decisive influence in determining guilt or inIn OCenCe.

Appeal from Circuit Court, Graves County.

R. S. Grisson was convicted of violating Ky. St. § 1213a, as to drawing, uttering, or delivering any check, Where there are insufficient funds in the depositary to meet the same, and appeals. Affirmed.

Webb & Weaks, of Mayfield, for appellant. Chas. H. Morris, Atty Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth.

CARROLL, J. Section 1213a of the Kentucky Statutes provides:

“That any person who with intent to defraud shall make, or draw or utter or deliver any check, draft or order for the payment of money upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has not sufficient funds in such bank or other depository for the payment of such check, draft or order in full upon its presentation; * * * and if the amount of such check or draft be twenty dollars or over, he shall be guilty of a felony and confined in the penitentiary for not less than one year nor more than two years, and the drawer of such check or draft shall be prosecuted in the county in which he delivers same: Provided, however, that if the person who makes, issues, utters or delivers any such check, draft or order, shall pay the same within twenty days from the time he receives actual notice, verbal or written, of the dishonor of such check, draft or order, he shall not be prosecuted under this section, and any prosecution that may have been instituted within the time above mentioned, shall, if payment of said check be made as aforesaid, be dismissed at the cost of defendant. The making, drawing, uttering or delivering of such Check, draft or Order as aforesaid, shall be prima facie evidence of intent to defraud.”

The indictment against the appellant, GrisSOn, Was found under this Section On December 1, 1917, and charged that:

He did “unlawfully, willfully, feloniously and fraudulently draw, utter, deliver and present a certain check dated September 1, 1917, and drawn on the First National Bank of Mayfield, Ky., and deliver the same to J. E. Choate, and represent to said J. E. Choate that he had funds in said bank to meet said check, when in truth and in fact he had no funds in said bank to meet said check, and he well knew that there . were no funds to meet said check in said bank at the time he made said statement and repreSentations to the said Choate, and the said Choate relied upon said statements, and believed in the same, and cashed the said check, and paid said R. S. Grissom the sum of $25, the face Value of Said check, and said check is in Words and figures as follows, to wit: * * * That said check Was drawn and placed in circulation With the fraudulent and felonious intent to defraud the First National Bank and J. E. Choate, and the said Grisson did defraud the said J. E. Choate of his property, to wit, $25 at said time he procured the said J. E. Choate to accept and cash said check.”

On a trial in March, 1918, under this indictment, Grisson was found guilty and his punishment fixed at One year in the State penitentiary. He asks a reversal of the judgment upon the grounds that the indictment was fatally defective in that it did not charge a public offense; that the evidence Was not Sufficient to Sustain the Verdict; that after the Verdict he discovered new evidence entitling him to a new trial; that the trial Court COmmitted error in the instructions to the jury; that incompetent evidence was permitted to go to the jury.

[1, 2] The indictment stated a public offense under the statute, and, besides, was free from substantial error. It is, however, argued that the indictment was defective in failing to charge that Grisson failed for 20 days after he received actual notice Of the

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

dishonor of the check to pay it, but it was not necessary that this defensive matter should have been set forth in the indictment.

The rule in respect to exceptions and proViSOS COntained in a criminal Statute, and the necessity for charging in the indictment that the accused did not come Within the proviSions of the exception, are thus Stated in Commonwealth v. Louisville & Nashville Railroad Company, 140 Ky. 21, 130 S. W. 798:

“If the exception is contained in the sentence or paragraph of the statute that creates and describes the offense, then it must be negatived in the indictment; but if the exception is not found in the sentence or paragraph that creates and defines the offense, but is contained in a separate section or in a distinct proviso or paragraph, it is a matter of defense for the accused, and it is not necessary that the indictment should charge that he did not come within the exception.”

Under this rule it was not necessary to make any mention in the indictment of the matter contained in the proviso relieving the defendant of the penalty of the statute if he observed the requirements of the proviso intended for his benefit.

[3] The evidence introduced in behalf of the commonwealth made out a clear case of guilt under the indictment. It showed that Grisson procured from Choate $25 on a check drawn by him on a bank in which he did not have, at the time, any money on deposit, and had not had at any time within two years before the date of the check. On the faith of the check he got from Choate $25, no part of which he ever paid. It would be difficult to make out for the commonwealth a stronger Or clearer case than the evidence in this record does. Grisson, however, in an effort to escape the penalty for the Offense of which the jury fund him guilty, testified, in substance, that he told Choate, at the time he gave him the check, that he did not have any money in the bank, and thereupon Choate loaned him the $25, with the understanding

that it would be repaid when he (Grisson) had Sold Some property and placed the proceeds of the sale in the bank. [4] In respect to the newly discovered evidence, Grisson testified that he got the money from Choate in Mayfield during banking hours; while Choate testified that he accepted the check and let him have the money. after the banks had closed for the day. The alleged newly discovered evidence which it WaS proposed to make by a man named Stubblefield Was to the effect that Stubble-. field would testify that he saw Choate and Grisson go into the bank on the day on which the check Was given about noon and during banking hours. Aside from the fact that this newly discovered evidence was not so material as to have a decisive influence With the jury in determining the guilt or innocence of Grisson, it is shown that Grisson knew that Stubblefield lived in Mayfield, where the trial Was had, and that he told Stubblefield, during the trial, that he wanted him to come to the Courthouse and testify, in his behalf, thereby showing, as we think, that he knew the facts that were in the knowledge of Stubblefield in ample time to have procured the evidence Of Stubblefield On the trial if he had desired it. Under these circumstances, there is no merit in the ground for a new trial sought to be rested on the alleged newly disCovered evidence. The instructions are complained of, but we find no objection in them; they Stated in apt terms the case for the commonwealth, as well as the defense relied on by Grisson. In respect to the assigned error relating to the admission of incompetent evidence, it is sufficient to say that the evidence to which Objection was made in the lower court and Overruled was not so material as to affect the merits of the case. Upon the whole, we find no error in the record prejudicial to the substantial rights of Grisson, and the judgment is affirmed.

(181 Ky. 108)
GREENE v. COHEN.

(Court of Appeals of Kentucky. June 14,
1918.)

1. STATES <>63—CHANGE OF COMPENSATION
DURING TERM.

Although Acts 1918, c. 69, § 12 (covering in
a more elaborate manner the same subject cov-
ered by Ky. St. § 63a, which it repeals), some.
what extends the duties of the commissioner of
agriculture, labor, and statistics, as ex officio
chairman of the state live stock sanitary board,
it cannot, in so far as it increases his salary
for the present term, be sustained in view of
Const. § 235, providing that the salaries of
public officers shall not be changed during the
term for Which they were elected, etc.
2. OFFICERS 6->110–IMPOSING NEW DUTIES

—COMPENSATION.

The right to impose new ex officio duties
upon a public officer without compensation is
recognized by Ky. St. § 1749, subsec. 5, pro-
viding that “no fee bill shall be made out or
compensation allowed hereafter for any ex of-
ficio services rendered or to be rendered by any
officer.”

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The appellant, Robert L. Greene, is auditor
of public accounts of the state of Kentucky,
and the appellee, Matt S. Cohen, is its com-
missioner of agriculture, labor, and statistics.
His term of four years began on the first
Monday in January, 1916; the duties of his
office, prior to 1918, were fixed by chapter 4 of
the Kentucky Statutes. Article 2 of chapter
5 of the Kentucky Statutes upon the subject
of “Animals” related to infectious diseases of
cattle and hogs, and their treatment, and for
the purpose of carrying out the provisions of
that statute the state live stock sanitary
board had been created, consisting of the com-
missioner of agriculture, labor, and statistics,
ex officio chairman, the head of the division
of animal husbandry of the Kentucky experi-
ment station, ex officio member, and four
members of the state board of agriculture.
Ky. St. § 63a, subsec. 11.

By an act approved March 20, 1918, entitled
“An Act to suppress, * * * control, and
eradicate communicable diseases in live stock,
to provide the necessary officers and define
their duties and powers, and to appropriate
funds necessary for its enforcement, and re-

pealing section 63a of article 2, chapter 5,
Carroll's 1915 edition, Kentucky Statutes,”
the scope of the office and the duties of the
COmmissioner Were SOmeWhat extended to
accomplish the enlarged purposes Contem-
plated by the new statute. Acts 1918, p. 361.
This new act of 1918 covered, in a more
elaborate manner, the same SubjectS that
were covered by the act which it repealed.
Section 12 of the new act of 1918 contains
this proVision: -
“That, to carry out the provisions of this
act, there is hereby constituted the state live
stock sanitary board of Kentucky, which shall
consist of the commissioner of agriculture, la-
bor and statistics, ex officio chairman, the di-
rector of the Kentucky agricultural experiment
station, ex officio member and vice chairman,
the head of the division of animal husbandry
of the Kentucky agricultural experiment sta-
tion, ex officio member, and four members of
the state board of agriculture, two from each
of the dominant, political parties, to be select-
ed annually by the said state board of agricul-
ture. The members of the board shall serve
without salary, but shall receive ten dollars
per diem for each day the board is actually
in session, together with all the necessary trav-
eling and other expenses incurred while en-
gaged in the discharge of their official duties.
The chairman of the board shall receive for his
services, as such, a salary of one thousand
five hundred dollars per annum and the neces-
sary traveling and other expenses incurred
while engaged in the discharge of his official
duties. The chairman of the board may, and
at the request of four members shall, call the
meetings of the board at such times and places
as may be deemed necessary for the best in-
terests of the live stock industry.”

Cohen made out and presented to the au-
ditor an account for his monthly Salary, and
the auditor having refused to issue his War-
rant therefor, upon the ground that the act of
1918 Violated Section 235 Of the COnstitution
When it attempted to raise appellee's Salary
during his term of office, Cohen instituted
this action for a mandamus to require him
to do so. The auditor demurred to the peti-
tion and answered, admitting all the allega-
tions of the petition, except that paragraph
thereof, which alleged that the duties requir-
ed. Of the commissioner of agriculture, labor,
and statistics, by the act of 1918, are wholly
independent of and disconnected with the
duties of the plaintiff as commissioner of
agriculture, labor, and Statistics. On the
contrary the answer alleged that Cohen is
required to perform the duties imposed upon
him by the act of 1918 by virtue of his office
Of commissioner of agriculture, labor, and
Statistics.

The circuit Court OVerruled the defendant’s
demurrer to the petition, Sustained the plain-
tiff’s demurrer to the answer, and the de-
fendant having declined to further plead, 1t
entered a "judgment requiring him to issue
his Warrant in favor Of the plaintiff for the
salary claimed under the act. From that
judgment the auditor prosecutes this appeal.

Appellee insists that this CaSe does not
present an increase of salary which is pro-
hibited by sections 235 of the Constitution,

©: For other cases see same q9pic and KEY-NUMBER in all Key-Numbered Digests and Indexes

because, as he claims, the act of 1918 merely ted property, and the auditor defended upon provides compensation for the new and | the ground that the act in that respect Violatnumerously increased duties imposed upon ed the Constitution by attempting to change him as chairman of the state live stock sani- the compensation of a county attorney during tary board, which were not provided for or his term of office. In 1905 the county attormentioned in the old law upon the Fubject. ney was paid a salary fixed by the fiscal court, It is pointed out that the act of 1918 imposes and the act of 1906 allowed him, in addition, upon the state live stock sanitary board many 15 per centum of omitted taxes assessed in new duties that were not required of him suits in which he appeared. In denying Dufformerly, including the duty to appoint a |fy's right to recover the extra compensation deputy state veterinarian, four assistant allowed by the act of 1906, this court said:

state veterinarians, one special veterinarian in tuberculosis work, and twelve emergency men scattered in as many districts in the state to work in connection with six federal employés supplied by the bureau of animal industry. The chairman also is required to issue licenses to vendors of hog cholera virus in the state, to approve appraisals of diseased animals and pay indemnity for their destruction; he is given the general Supervision Of, and held accountable for, the entire annual appropriation of $28,190, and all moneys received from licenses and forfeitures, to approve the appointment of county live stock inspectors in each county in the state, and to Supervise the purchase of necessary supplies and equipment in carrying out the provisions of the act. In support of his contention that the act of 1918 is constitutional, appellee relies principally upon the opinion of this court in James, Auditor, V. Cammack, 139 Ky. 223, 129 S. W. 582, While the commonwealth asks a reversal upon the authority of James, Auditor, V. Duffy, 140 Ky. 604, 131 S. W. 489, 140 Am. St. Rep. 404. In Speaking in a general Way of Section 235 of the Constitution, this court, in James, Auditor, V. Cammack, supra, 139 Ky. 227, 129 S. W. 583, said: “The second objection, that the act is inimical to section 235 of the Constitution, in that it, increases the compensation of the officers after their election, is more serious. Undoubtedly, the provision in the Constitution against the changing of the salary of public officers after their election is mandatory as well as wise, and under no circumstances should the courts suffer or permit any consideration to induce them either to minimize or abrogate the fundamental law of the commonwealth.” It is there further Said that the proVisions of the Constitution should not, under any circumstances, be treated lightly or irreverently. And, in the Duffy Case, it was made clear that a public official has no contract With the State or county to perform all the duties imposed upon the Office at the time of his election; that the duties of his office may be diminished without diminishing his Salary, or that the duties may be increased without increasing his Salary; and that he must, while holding a public office, discharge all of his duties, even though no compensation therefor be provided. In James, Auditor, V. Duffy, supra, the action was brought by Duffy, a county attorney, against the auditor, to recoVer a percentage Compensation allowed county attorneys by the act of 1906 for serv

“The question is, Is that a change of his compensation during his term of office? That it increases his compensation is beyond dispute. But it is argued it does not change it, because it is for new duties imposed, and therefore is a fixing of compensation for those duties alone. The fact still remains that the official receives more money as compensation for his official duties than he did before. In fact We do not regard the statute of 1906 as changing or adding to the duties required of the county attorneys. But let that be as it may, it is not material. The Constitution does not prohibit, the Legislature from changing the . duties of public officers—either adding to them or taking from them, but it does forbid changing their compensation. By compensation is meant pay for doing all that may be required of the official. Bright v. Stone, Auditor, 20 Ky. Law Rep. 817, 43 S. W. 207. f the compensation is a salary, the salary must remain the same throughout that official’s term, whether or not the scope of his official duties has been increased or lessened. If the compensation be fees, then the same scale of fees must prevail for the same services, and if new duties are, imposed, with fees attached, the incumbent when the change is made cannot charge for the new duties. The section of the Constitution is inexorable. It admits of no exceptions. It affords no opportunity for evasion by the Legislature or other body. Its purpose cannot be defeated by indirection. It is a complete barrier to change of compensation, whether salary, scale of fees, or both. It operates upOn the office and the official, not upon his duties.

Turning now to the opinion in James, Auditor, V. Cammack, Supra, relied upon by the appellee to support the judgment of the trial court, it will be observed that that case is in principle radically different from the Duffy Case and from the Case at bar. The Cammack Case arose under an act of the General Assembly passed in 1910, authorizing the regular circuit judges (except in those districts embraced in a city of either the first or second class, and wherein a court of continuous sesSion was held) to act as Special judges of the circuit courts of the commonwealth, for which additional service each judge was to receive an annual Salary of $1,200, payable out of the State treasury. The auditor Contended that the act did not apply to the circuit judges in office at the time of its passage, because to SO hold WOuld Work a Violation Of Section 235 of the Constitution.

This court, however, Sustained the statute, holding that the duties imposed upon the regular circuit judges by the act of 1910 were new and different duties that Were not formerly required of them, and that these new duties were to be performed by the individual

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