the res gestæ. Pine Bluff Natural Gas Co., tion. v. Guest, 177 S. W. 917.1 [5] It is insisted the court erred in admitting the testimony of Forest Abernathy to the effect that he heard appellant about eight hours before the killing threaten to kill a certain automobile mechanic if he stayed with Elsie. Harmon, the man killed, was an automobile mechanic, and was found by appellant immediately before he killed him in bed with Elsie Beacham. The threat was quite definite and sufficiently connected in point of time with the transaction to render it admissible as a circumstance tending to show appellant's intent in, or probable motive for, killing Harmon. Crawford v. State, 197 S. W. 19. There was a substantial compliance with every requirement of the rule adopted by this court for the admission of the evidence of an absent witness: (1) The witness testified under the sanction of an oath. (2) Appellant was under arrest, present, and given an opportunity to cross-examine the witness. While no formal charge had been preferred against him, he was for all practical purposes a defendant in the proceedings. (3) The proceeding was judicial in nature. (4) The testimony in detail was reduced to writing under direction of the coroner. (5) A subpoena had been issued for the witness, and the sheriff had ascertained from those who knew him best that he was absent from the state. McNamara v. State, 60 Ark. 402, 30 S. W. 762. [9] It is insisted that the court erred in ad tending to identify the knife claimed to have been used by Harmon in the affray as the knife of Mabel Sherman. The question and answer, embracing the evidence to which specific objection was made, are as follows: It is insisted the court erred'in permitting Judge Otis W. Scarborough to read to the jury the transcribed evidence of H. C. Gal-mitting the evidence of Herman Richards lagher taken by Mrs. Hays, the stenographer, at the inquest held by the coroner over the body of the deceased for the reasons: First, because sufficient foundation was not laid to introduce the testimony of an absent witness. Second, because the evidence was identified and read by the deputy prosecuting attorney, and not the stenographer. Third, because the inquest held before Coroner Nolan where H. C. Gallagher testified was not a judicial proceeding. [6] 1. A subpœna was issued for H. C. Gallagher three weeks before the trial. The sheriff ascertained by inquiring at his usual working place that he had gone to Louisiana. S. C. Wilkerson testified that Gallagher had gone to Louisiana, and that he had received a letter from him written and mailed at Jeffries, La. The absence of the witness from the state was sufficiently established to justify the introduction of his evidence given before the coroner. [7] 2. The witness testified under oath, and the testimony was taken in shorthand by a stenographer employed for the purpose and by her transcribed. The transcribed evidence was read to the jury by the deputy prosecuting attorney, who testified that he was familiar with the testimony given by the witness before the coroner, and that the testimony read corresponded with his recollection thereof. There is no law requiring the evidence to be identified by the stenographer. The identification of the evidence by one who can recall the substance of the evidence is sufficient to justify its introduction. [8] 3. It was generally known and appellant admitted that Harmon was killed by gunshot wounds inflicted by appellant, so the only purpose for a coroner's inquest was to ascertain whether the killing was unlawful. The deputy prosecuting attorney was present for the purpose of conducting the examina 1 Reported in full in the Southwestern Reporter; reported as a memorandum decision without opin "Q. Is the knife in the same condition in which it was when you cleaned your finger nails with it? the 18th day of May. A. In the same condition it was on It belonged to Mabel Sherman, I suppose. I started to go off with the knife, and she said, 'Where is my knife?'" Appellant contended that Harmon attacked him with a knife he had picked up in a chair in Elsie Beacham's house in the room where the difficulty occurred, and was attempting to stab him with it when he (appellant) shot Harmon. Mabel Sherman turned the knife over to the town marshal, Sandmon, claiming it was the knife used by Harmon in an attack on appellant. Sandmon turned the knife over to the coroner. Elsie Beacham testified that Harmon did not attack appellant with a knife. Whether the particular knife in question was used by Harmon in an attack upon appellant became an acute issue in the case. Any evidence tending to show that the knife was the property of Mabel Sherman would tend to show that Harmon did not use it in an attack upon appellant. We think Richards' evidence tended to show that Mabel Sherman was the owner of the knife, and in that way tended to disprove the claim of appellant that Harmon attacked him with it. Appellant objected to the whole of Richards' evidence because the transcribed notes of his testimony taken by the stenographer at the inquest were identified and read to the jury by the deputy prosecuting attorney. The witness was absent from the state, and the evidence was admissible under the rule announced in McNamara v. State, supra. [10] It is insisted that the court erred in permitting the prosecuting attorney on crossexamination of appellant to draw out the fact that he had been convicted of a felony in Missouri. The specific objection was made that the record would be the best evidence. This 140 S. W. 139, that it is permissible, in order | Harmon, Elsie, and himself. Mabel Sherman to test the credibility of a defendant who testified, in substance, that no such statement takes the witness stand in his own behalf, to was made by Kelley. She said: ask him on cross-examination whether he has been convicted of a crime or served a term in the penitentiary. Under this rule, it was not error to ask appellant on cross-examination touching his former record for the purpose of testing his credibility. "While I was in there Kelley did not make any statements about killing Elsie and Harmon. Kelley didn't cry that night after the killing, and didn't hear him make any statements to Elsie as to his feelings towards her." This testimony fully corroborated appellant's on the point, and no prejudice resulted to him on account of the court's action in refusing a repetition of her testimony in relation thereto. [11] It is insisted that the court erred in permitting Ben Sandmon to testify in rebuttal that the knife introduced in evidence was the same knife introduced in evidence at the [16] It is insisted that the court erred in coroner's inquest, and that the court ag- refusing to permit Kelley to testify in rebutgravated the error by stating, "Mabel Sherman tal "that he had never heard from any identified the knife, and she is one of defend- source, and did not care, whether Elsie ant's witnesses." The undisputed evidence Beacham had Harmon as her man." It seems showed it was the same knife, and the remark that Kelley was permitted to answer as to of the court called attention to that fact. what he knew, for he testified on the point as The fact being undisputed, no prejudice resulted to appellant by additional evidence showing it to be the same knife nor by the remarks of the court that defendant's witness identified the knife. [12] But it is said Sandmon's testimony relating to a conversation with Mabel Sherman after the killing, was erroneously admitted. Mabel Sherman was a witness for appellant, and denied telling Sandmon that she was not there at the time of the shooting, and denied telling him that she did not know how the trouble started. The subsequent conversation between Mabel Sherman and Sandmon, detailed by him and objected to by appellant, consisted of statements made by Mabel Sherman contradictory of her testimony in the case. The evidence was admissible for the purpose of impeaching the witness. [13] It is insisted the court erred in excluding as immaterial the cross-question propounded to Dave Seligman as to which side of the bed he slept on the night of the difficulty. Seligman and his wife were sleeping in the house next to Elsie Beacham, and heard pistol shots and some one talking in the room when the shooting occurred. He testified that he heard the shots and certain statements made by a man in the room. As he testified to things he heard, it seems to us wholly immaterial as to which side of the bed he slept on. There was no showing that he could not have heard that to which he testified had he slept behind in stead of before, or vice versa. [14] It is also insisted that the court erred in excluding as immaterial the following question: "Did they summons you over the telephone, or did they read the subpoena to you?" It is said this question was proper to ascertain the interest or bias of the witness. If the witness came in response to a summons over the telephone, it would not tend to show bias or prejudice, so we think the court was correct in excluding the evidence. [15] It is contended the court erred in refusing to permit appellant to prove by Mabel Sherman that Kelley did say he had bought follows: "I did not know that Harmon was bedding with Elsie; made no statement to anybody at that time or place that I objected to him doing that, and never kept her at any time or placo as my woman.' He was also permitted to testify that he had seen her bedding with other men, and that he made no objection to it. The testimony given by him amounted to an expression on his part that he was not jealous of Elsie, so no prejudice resulted to him by the exclusion of the particular question on the point objected to by the state. [17, 18] It is insisted that the court erred in giving instruction No. 17, which is as follows: "If you find from the evidence that the defendant Kelley was the aggressor in the diffithen he cannot avail himself of the justification culty, and brought about the fatal encounter, of self-defense until he has shown that he made an effort to retire from the conflict, and exercised all reasonable means within his power, consistent with his safety, as the circumstances appeared to him, to avert the danger and avoid the apparent necessity of the killing; and that the killing was necessary to prevent his losing his own life, or receiving great bodily harm at the hands of the deceased." It is said the instruction was not warrant ed because there was not sufficient testimony that Kelley was the aggressor. Elsie Beacham testified that Kelley initiated the fight and continued to be the aggressor throughout the difficulty. Her evidence on the point was sufficient warrant for the instruction. It is said the instruction was erroneous because it tended to prevent the jury from giving the defendant the benefit of the reasonable doubt as to lower grades of homicide. The instruction must be read and considered in connection with other instructions given, and the objection suggested to this instruction is eliminated by the giving of other instructions covering the questions of reasonable doubt and the lower grades of homicide. [19] It is said the instruction is erroneous for the reason that it did not correctly or fully include the circumstances under which conflict. The latter part of the instruction, 100 Ark. 330, 140 S. W. 260. In the Gilcovers the idea that appellant was not re- christ Case the jury first returned a verdict quired to retire from the conflict if by so do- without fixing the degree of murder and leaving he would subject himself to great bodily ing the punishment to the court. At the harm or endanger his life. It is clearly in- time the verdict was rendered in the Gildicated in the latter part of the instruction christ Case the jury had no discretion with that it was not incumbent upon appellant to reference to the punishment. It was the duretire if Harmon was making a deadly as-ty of the jury to specifically designate the sault upon him with a knife. [20] It is insisted that the court committed reversible error in refusing to give instruction No. 3, asked by appellant, which is as follows: "A reasonable doubt may arise where there is lack of evidence to satisfy your minds and consciences as to the defendant's alleged guilt." It is not required that trial courts multiply instructions upon the same proposition of law applicable to the case. Instruction No. 2, given by the court, is in substance the same as instruction No. 3 requested by appellant. It is as follows: "By reasonable doubt is meant that the evidence of the defendant's guilt must be clear and convincing and fully satisfy your minds and consciences; but it does not mean a mere imaginary, possible, or a captious doubt." [21] The point made by learned counsel for appellant is that appellant was entitled to an affirmative declaration of the law on the point. It appears to us that instruction No. 2, given by the court, is an affirmative declaration of the law as much so as instruction No. 3, requested by appellant. The court did not err in refusing instruction No. 3, requested by appellant. [22] Appellant insists that the court erred in permitting the stenographer to read Forest Abernathy's evidence to the jury in response to the jury's request after the case had been submitted. It appears that the evidence was read to the jury in the presence of the court and parties. The chief objection urged is that appellant's evidence on the same point should have also been read to the jury at the same time. No such request was made, either by appellant or the jury. It would be an impractical and burdensome rule that necessitated the reading of all the evidence in a record bearing upon a particular point, or the reading of all the witnesses testifying about the same transaction, upon the request of a jury to hear the evidence of some particular witness read. We do not think the court committed error in permitting the stenographer to read the evidence of Abernathy to the jury. [23] It is insisted that the court erred in receiving the verdict of the jury in form as returned, and in discharging the jury, and in rendering a judgment for murder in the first degree on the verdict. The form of the verdict was as follows: "We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment. A. G. Steadman, Foreman." A verdict in this form was approved by crime, and the law fixed the punishment. In order to clear the verdict from the cloud, the verdict was amended so as to insert the degree of homicide and strike out the recommendation that the court fix the punishment. Since the verdict in the Gilchrist Case was rendered, the law has been amended so as to permit juries in capital cases to impose the penalty of life imprisonment in lieu of the death penalty. Section 1 of the act is as follows: "That the jury shall have the right in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the state penitentiary at hard labor." Act 187, Acts 1915. It is strenuously insisted by learned counsel for appellant that the act is mandatory, and imposes a duty upon the jury to fix the punishment either of death or life imprisonment. We think the plain language of the statute is against the contention. It, in so many words, extends a privilege or right to a jury to impose a lighter punishment than death. In case the clemency is not extended, the punishment fixed by law follows the verdict. We agree with counsel that a verdict of doubtful meaning as to what penalty was intended should be corrected. In the instant case, no cloud is apparent in the verdict. Neither will the facts warrant the inference that the jury intended to reduce the penalty to life imprisonment, for they were told that they had the privilege to do so under the law, and were specifically instructed desired to reduce the penalty. They rejected as to the form of the verdict in case they the form of verdict extending clemency, and returned a verdict finding the appellant have examined the case of Avant v. State, guilty of murder in the first degree. We g8 Miss. 226, 40 South, 483, 117 Am. St. Rep. 737, but the verdict in that case clearly indicated that the jury did not want the death The verdict in that case penalty imposed. was as follows: "We, the jury, find the defendant guilty as charged and beg the mercy of the court." "actual intent and finding of the jury," so The language employed did not reflect the it was the duty of the court in the Avant Case to require the jury to dispel the cloud. There was no cloud in the verdict in the instant case to dispel. The language conveying the intent of the jury was unambiguous. No error appearing in the record, the judg RATLIFF v. WILLIAMS. (Court of Appeals of Kentucky. April 12, 1918.) 1. FRAUDULENT CONVEYANCES 278(1)-BURDEN OF PROOF. ~277(2), The burden is on a judgment creditor to show that a transfer of land of the judgment debtor by a commissioner, who held it for creditors, to a son of the debtor was fraudulent, or that it was paid for by the debtor, and not the son. 2. FRAUDULENT CONVEYANCES his attached lien on the property in consideration of the payment to him of $750 by W. J. Williamson, one of W. O. B. Ratliff's creditors. In the year 1900 Williamson entered into an agreement with W. O. B. Ratliff by which Ratliff was to act as his agent in disposing of the property and should have as his compensation all the property in excess of the sum of $3,800. It was further agreed that Ratliff should be discharged of all claims proven in the suit of I. E. Gray, Assignee, v. Bank of Pineville, etc., as well as of the claim of U. K. Williams. The contract also contained the provision that Williamson would make conveyances to the purchasers procured by Ratliff, in the event he approved of the sales. Pursuant to this Appeal from Circuit Court, Pike County. agreement Williamson sold a portion of the Proceedings by U. K. Williams to subject lands to which he acquired title in the suit property of A. S. Ratliff to an execution debt above referred to to other parties for the in favor of the former against W. O. B. Rat-sum of $1,123.86, and on March 16, 1903, conliff. Judgment for plaintiff, and defendant veyed to A. S. Ratliff an undivided one-half appeals. Reversed and remanded, with di-interest in the remainder of the lands. The 298(2), 300 (3)-SUFFICIENCY OF EVIDENCE. Evidence held insufficient to sustain a finding by a chancellor that a transfer of land by a commissioner, holding property for creditors, to a son of the debtor was not in good faith, or that the debtor, and not the son, paid for it. rections. Stratton & Stephenson, of Pikeville, for appellant. Cline & Steele, A. F. Childers, J. S. Cline, and Auxier, Harman & Francis, all of Pikeville, for appellee. CLAY, C. The only question on this appeal is whether A. S. Ratliff's interest in certain lands in Pike county was properly subjected to an execution debt in favor of U. K. Williams and against W. O. B. Ratliff, the father of A. S. Ratliff. It appears that in the year 1891 U. K. Williams brought suit against W. O. B. Ratliff and attached the latter's property, and in the year 1893 obtained a judgment against W. O. B. Ratliff for the sum of $1,000, with interest from November 14, 1891, together with the costs of the action, amounting to $16.85. The judgment was credited by the sum of $750 paid November 14, 1897. Thereafter an execution was issued on the judgment and returned no property found. This suit was brought against A. S. Ratliff, the son, and Mary E. Ratliff, the widow, of W. O. B. Ratliff, to subject certain lands to the execution debt on the ground that they had been paid for by W. O. B. Ratliff and had been conveyed to the defendants for the pose of defrauding his creditors. consideration for this conveyance was $2,- [1, 2] There is nothing in the record to show any fraud on the part of Williamson or W. O. B. Ratliff in making the sale of A. S. Ratliff. The title to the property had passed out of W. O. B. Ratliff by virtue of the commissioner's sale. The title being in Williamson, he had the right to dispose of the property. It is not contended that the property was worth more than the purchase price. The evidence is clear that the purchase price was paid, and the only ground on which the land could be subjected to the payment of pur-Williams' debt is that it was paid for by W. The burden of showing this Briefly stated the facts are as follows: O. B. Ratliff. fact was on Williams. Guthrie v. Hill, 138 Prior to the year 1891 W. O. B. Ratliff was engaged in logging and merchandising. In Ky. 181, 127 S. W. 767. Instead of meeting the year 1891 he made an assignment to I. this burden, the uncontradicted evidence E. Gray for the benefit of his creditors. In shows that the money was borrowed by A. S. a suit by the assignee against the Bank of Ratliff to pay the consideration, and that the Pineville and other creditors, certain lands bank from which the money was borrowed Delonging to W. O. B. Ratliff were sold and was subsequently repaid by the proceeds from were purchased by W. M. Connolly. Connol- the partnership of A. S. Ratliff & Co. Under ty's bid was assigned to Ben M. Williamson, these circumstances, the mere inference dewho obtained a commissioner's deed and ducible from the fact that A. S. Ratliff was agreed to hold the property in trust for the a young man, and that his father was an old creditors. At that time Williams released experienced timber man and advised him in regard to the logging business, is not sufficient to show that the property was paid for by the efforts of W. O. B. Ratliff, especially in view of the evidence that the partnership business was conducted principally by James Hatcher, an experienced timber man. We therefore conclude that the chancellor erred in subjecting the property in question to the payment of plaintiff's debt. Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion. ELAM v. SALISBURY, Mayor, et al. (Court of Appeals of Kentucky. April 11, 1918.) 1. MUNICIPAL CORPORATIONS ES-EXEMPTION-VALIDITY OF ORDINANCES. Const. § 170, provides that the General Assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation for a period not exceeding five years as an inducement to their location. Ky. St. § 3490, subsec. 32, gives authority to the boards of council of fourth class cities by ordinance to exempt manufacturing establishments and the machinery from taxation for a period of not exceeding five years from the establishment in such city. A fire occurred in a tanning establishment located in a fourth class city, and burned numerous buildings, but left certain substantial ones intact. To induce the tanning company to stay in the city the board of council passed an ordinance exempting it from taxation for five years. Held, that the ordinance was invalid, since the statutory provisions were not intended to apply to manufacturing concerns already located. 2. MUNICIPAL CORPORATIONS council was subject to review by mandamus as a gross abuse of discretion. Appeal from Circuit Court, Boyd County. Application by O. M. Elam against William Salisbury, Mayor, and others, for writ of mandamus to compel the assessment of omitted property. From an order dismissing the petition, petitioner appeals. Reversed and remanded. J. F. Stewart and John W. Woods, both of Ashland, for appellant. Proctor K. Malin and John T. Diederich, both of Ashland, for appellees. CLAY, C. On October 23, 1911, a fire occurred in the plant of the Ashland Leather Company, which consisted of about 34 buildings in the city of Ashland, equip967(2)-TAX-ped for tanning sole leather, belting, etc. With the exception of the engine and boiler house, a one-story iron clad frame building, 50x60 feet, the bark shed, the leech house, a one-story frame building, 30x100 feet, the office, a one-story brick building 22x40 feet, the beam house, a one-story brick veneer building, 66x176 feet, and the hide house, a two-story brick veneer building, all the buildings, machinery, equipment, material, and supplies used by the company for the purpose of operating its tannery were destroyed. Thereupon several cities throughout the United States offered the company a free site and exemption from taxation as an inducement to the location of their new At the same time the plant in such cities. commercial organizations of the city of Ashland offered to donate money for the purpose of purchasing additional real estate, and agreed that they would endeavor to procure the adoption of an ordinance by the board of council exempting the property of the company from taxation for a period of five years if the company would erect its new plant and continue its business in that city. This proposition was accepted, and on November 8, 1911, the board of council passed the necesSary ordinance. Thereafter the company rebuilt its plant, and continued to carry on its business in the city of Ashland. 971(3)—TAXES ASSESSMENT OF OMITTED PROPERTY DISCRETION OF ASSESSING BODY-“MAY.” Under Ky. St. § 3542, providing that if for any reason any property subject to taxation has not been listed, the council "may" assess the same, a city council has no discretion as to making such assessment; permissive words being imperative where the public or individuals have a right that the power conferred be exercised. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, May.] 3. MANDAMUS · TAXES OMITTED PROPERTY-COMPELLING ASSESSMENT. Mandamus will lie to compel a city council to assess omitted property, where such property is subject to taxation and has not been listed, in view of Ky. St. § 3542, providing that if for any reason any property subject to taxation has not been listed, the council may assess the On January 9, 1915, Oliver M. Elam, a citizen and taxpayer of the city of Ashland, served a written notice on the mayor and each member of the board of council that the action of the board of council, exempting the property of the company from taxation, was void, and requesting them to assess the property for the years 1912, 1913, and 1914 as omitted property, but the board of council refused to assess the property. On February 22, 1915, Elam instituted this proceeding for a mandamus, compelling the mayor and the members of the board of council to assess the property for the years 1912, 1913, and 1914. To this proceeding the Ashland Leather Company and the board of education of the city of Ashland were |