as amended by the Acts of 1910, provides: "The decisions of the court upon challenges to the panel and for cause and upon motion to set aside an indictment shall not be subject to exceptions." In the recent case of Slaughter v. Commonwealth, 152 Ky., 128, a reversal was asked because of the error of the trial court in not setting aside the indictment on the ground that the names of the witnesses who appeared before the grand jury were not endorsed on the indictment as required by section 120 of the Criminal Code. After quoting the above section of the Criminal Code, the court said:

"In the recent case of Hendrickson v. Commonwealth, 146 Ky., 742, this court, after a review of all the cases bearing on the question, announced the rule that although an indictment fails to contain an endorsement of the names of the witnesses examined by the grand jury, this infirmity may be corrected by motion to quash or set aside the indictment upon arraignment of the prisoner as required by Section 157, Criminal Code, nevertheless, under Section 281 of the Criminal Code, a decision of the court upon a motion to set aside an indictment is not subject to exception and cannot be reviewed on appeal."

Section 281 of the Criminal Code, supra, is equally applicable in a case of this kind, and precludes us from reviewing the propriety of the court's action in refusing to set aside the indictment in question.

(2.) It is next insisted that the court erred in either refusing to grant a continuance or in refusing to permit defendant's affidavit to be read as the depositions of certain absent witnesses. As to certain of these witnesses the trial court found as a matter of fact that no subpoena had been issued for them, and there is nothing in the record to show that he erred in this finding. The affidavit alleged that both Mrs. James Bowling and Mrs. James Stidham, if present, would testify that they saw James Deaton in Fletcher Deaton's yard between nine and ten o'clock on the morning of May 4, 1912. The defendant also offered to prove this fact by other witnesses. The court excluded the evidence of the whereabouts of Jim Deaton on the idea that his presence with Doc Smith at the time the shooting took place was brought out on the cross examination by counsel for defendant, and being a collateral matter, defendant was concluded by his answer. Certain witnesses for the Commonwealth had stated that there were three men

present when the shooting took place. The witness Doc Smith was asked who the third man was. He replied that it was Jim Deaton. If Doc Smith's testimony be true, Jim Deaton was present with him and Andrew Johnson, and actually participated in the murder of Ed Callahan. It being contended that he was an actor in the tragedy, a participant in the crime, his whereabouts on that occasion were so much a part of the res gestae as to make them a material and relevant issue instead of a collateral issue. We, therefore, conclude that defendant was not bound by Doc Smith's answer that Jim Deaton was present when the crime was committed. The issue in the case being one of veracity between Doc Smith and the defendant as to whether Doc Smith and Andrew Johnson were in Jackson on May 4th, it was competent for the defendant to show not only that Doc Smith and Andrew Johnson were not at Ed Callahan's on that day, but were in Jackson, and also that Jim Deaton, who Smith claims was present with them at Callahan's, was also in Jackson on that day. In other words, it was competent to show that he testified falsely as to the whereabouts of any one of the alleged members of the conspiracy. We, therefore, conclude that the court erred in refusing to let the evidence in question go to the jury.

(3.) It is also urged that the court erred in interrogating the witnesses Doc Smith and Andy Hays in the manner hereinbefore set out. We see nothing in the examination of Doc Smith of which complaint may properly be made. Smith had testified to facts which, if true, made it impossible for the defendant to have seen him in Jackson on May 4, 1912. No one, however, had asked Smith the direct question whether or not he saw defendant in Jackson on that day. Thereupon the court asked the question. The question was the result of an effort to ascertain the truth, and to bring before the jury the real facts of the case, and there was nothing in the question or the form in which it was put from which could be gathered the court's opinion of the facts or of the weight or sufficiency of the evidence.

As to the examination by the court of the witness, Andy Hays, a different question is presented. It will be observed that by the examination herein before set. out, the court called on the witness to testify as to a conversation which the witness had had with the court the day before. There can be no doubt that the first

question asked by the court plainly indicated to the jury that the witness had had a conversation with the court the day before in which he stated that he was mistaken in his testimony. When the witness answered "I said I thought I must have been mistaken," the court was not satisfied with his answer. He went on, and for the purpose of bringing before the jury what the witness had really stated to him, asked the additional question "That you came down here and swore that you saw them in Jackson May 4th, but that you were mistaken and if you were mistaken about it you were honestly mistaken about it?" The effect of repeating this question was to bring before the jury exactly what the witness did say to the court, and to indicate to the jury what the court thought of his testimony. The trial court, in discussing this phase of the case in a written opinion overruling the motion for a new trial, used the following language:

"The situation presented was not free of embarrassment for the Judge. Three courses were open to him. When the witness Hays had testified as he did, one was to play the part of the figure head and the silent witness of a farce, another was to call the counsel on both sides to the bench and impart his information to them and leave it to counsel for the Commonwealth to propound the question to the witness, the other was for the judge himself to ask the questions. If the counsel had been called to the bench, or even taken to another room for such a purpose or such a conference, and the counsel for the Commonwealth had then propounded the questions to the witness it would have been perfectly obvious to the jury that the informaiton upon which the questions were based, had been furnished by the judge. The other course, the other one adopted by the judge, gave less prominence to this Hays episode than such a parade would necessarily have done, and some such consideration must have influenced the judge to adopt the course he did in propounding the questions himself instead of calling the attention of the counsel to what the witness Hays had voluntarily stated to him, and having them ask the witness the questions.

"The fact was one the jury was entitled to hear and consider and it cannot be said that the action of the judge was improper, prejudicial or illegal."

The court also quoted the following from the case of State v. Anderson, (S. C.) 137 Am. St. Rep., 887:

"A grave responsibility rests upon a trial judge. It is his duty to see to it that justice be done in every case, if it can be done according to law; and if he thinks that the attorney for either party, either from inadvertence or any other cause, has failed to ask the witnesses the questions necessary and proper to bring out all the testimony which tends to ascertain the truth of the matter under investigation, we can see no legal objection to his propounding such questions; but, of course he should do so in a fair and impartial manner, and should not by the form or manner of his questions, express or indicate to the jury his opinion as to the facts of the case, or as to the weight or sufficiency of the evidence."

We fully realize the fact that the situation of the trial judge was embarrassing, and perhaps we might have made the same mistake that he did. On reflection, however, it seems to us that the proper practice would have been for the court, at the next adjournment, to call the attention of counsel to the conversation which he had had with the witness. As it was Hays was one of defendant's principal witnesses-the very man he claims to have gone into Jackson with, and who was present with him at the time that he claims to have seen Smith and Johnson in Jackson. His testimony, therefore, was of the greatest importance. We think the authority cited by the trial court is a very clear statement of the duties of a trial judge. We accept that statement as a fair exposition of the law on the subject, but it seems to us that the questions propounded to the witness Hays and the manner of his examination, though doubtless not so intended, go beyond the limitations pointed out in that opinion. The necessary effect of the questions propounded was to place the court itself in the attitude of an impeaching witness. We, therefore conclude that this action on the part of the court was prejudicial to the substantial rights of the defendant.

(4.) It is next insisted that the court erred in receiving evidence in rebuttal which should have been adduced in chief. Doubtless there are a few instances where this occurred, but in view of the fact that the trial court has a reasonable discretion in admitting testimony in chief by rebuttal witnesses, it is only in very rare instances that a reversal will be decreed on this ground. Henson v. Commonwealth, 139 Ky., 173; Truax

v. Commonwealth, 149 Ky., 703. But on another trial the State will introduce in chief all its evidence in chief. For the reasons indicated, the judgment is reversed and cause remanded for a new trial consistent with this opinion.

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Von Cotzhausen v. Barker.

(Decided June 20, 1913).

Appeal from Carroll Circuit Court.

Contract-Animals-Keep.-In an action to recover on a contract for the keep of stock, where defendant claimed that the stock was to be kept on shares, evidence examined and held to sustain the finding of the chancellor in favor of plaintiff.

Pleading-Consolidated Actions-Defect in Pleading Supplied by Others. Where several causes of action between the same parties are consolidated, allegations defectively stated in or totally omitted from one of the pleadings may be supplied by the averments contained in another, and a defect in the pleadings will be held to exist only where, considering them as a whole, a material averment is found to be omitted.

Parties Corporations-Evasion of Corporation Laws. Where a corporation, for the purpose of evading the corporation laws of this state, turns over to its president certain livestock, with power to make contracts with reference thereto, neither the corporation nor the president can complain of the fact that the corporation is not made a party to action against the president to recover for their keep, where the latter did not ask that the corporation. De made a party.

Principal and Agent-Personal Judgment Against Agent-When Allowed. Where a corporation, for the purpose of evading the corporation laws of this state, turns over to its president certain livestock, with authority to make contracts with reference thereto, and he, in his individual capacity, contracts for their keep, he thereby becomes personally liable on the contract.

Animals-Agister's Lien-Livestock-Contract for Keep-Time for Payment Not Fixed.-Where the contract for the keep of livestock is terminable at the will of either party, and no time for payment is fixed, it cannot be said that the keep is due at any particular time, and a keeper who still has the stock in his possession, is entitled to a lien and to retain the stock until his claim is paid, although claim covers a period of more than six months.

Parties-Appearance.-One who files a demurrer to a petition and has an order entered controverting of record the allegations of the petition, enters his appearance.