Central Trust Co. v. McCarroll

Opinion op the Court by

Chirp Justice Barker

Affirming.

Tlie question arising for adjudication on this record is whether under our statute regulating the matter, a ward may, after arriving at the age of fourteen years, supersede a former guardian appointed for him and nominate one of his own choosing. At common law the rule was that when an infant arrived at the age of fourteen years he had reached what was called the age of discretion, and from that time on until he reached his majority, he could among other things, select his own guardian. Blackstone in his Commentaries, volume J, page 463, says on this subject: “A male at twelve years old may take tlie oath of allegiance; at fourteen is at years of discretion, and, therefore, may consent or disagree to marriage, may choose his guardian, and, if his discretion he actually proved, may make his testament of his persona] estate. * * *” This common iaw rule prevails in this state, except where repealed or modified by the statute.

In the case of Montgomery.v. Smith, 3 Dana, 599, this court speaking through Chief Justice Robertson, said:

“As the court of the county of an orphan’s actual domicile may have power to appoint a guardian, and as a ward may, on attaining fourteen years of age, supersede his appointed guardian, by choosing another person for guardian — we perceive no objection to the power of the county court of Russell, if, as we infer. Robert Montgomery was domiciled in that county, and if also, he was foiirteen years of age when lie chose Smith for guardian; for the ward had a perfect legal right, by election, to terminate the authority of Francis Montgomery.”

The appellant, while admitting the common law rule as expounded in the foregoing opinion, insists that our present statute regulating the subject in hand changes the common law rule. Section 2022, Ky. Stats., is as follows:

“If a minor is fourteen years of age, he may, i'n the presence of the court, or by writing signed in the presence of the judge, after privy examination, nominate his own guardian; but if the person so.nominated is not approved by the court, or if the minor, after summons, fails to nominate a suitable person, or resides out of the state, or if the testamentary guardian fails for three months to qualify, the court may appoint a guardian of its own selection.”

It is urged that the foregoing language of the statute limits the power of the minor to select or nominate his own guardian if he be fourteen years old at the time of the first appointment, and that if before he is fourteen the court has selected for him a guardian, that guardian may not be superseded by the infant after he arrives at fourteen, but can only be removed for cause as set forth in sections 2024, 2025 and 2026, Ky. Stats. We cannot give our consent to this construction of the statute. The rule of the common law was a wise one. After the minor reaches the age of fourteen, or, as it was called, the age of discretion, the personal equation of the guardian and ward becomes of importance Upon reaching the age of discretion it is a very important matter to a ward to have a guardian who, at least, wiil be personally pleasant and sympathetic with him. After fourteen the youth commences to shape his education to fit him for the stern realities of life, and he has views of his own as to the kind and quality of the education he desires to acquire, and the future business or occupation he wishes to pursue. It does not require much imagination to see how disastrous it might be to a boy's life if he possessed a guardian who desired to force him to fit himself for a business for which he had no inclination or talent. Let us assume that the youth desired to enter the ministry, while his guardian insisted that he should be a lawyer. The young man’s whole life might be wrecked by the perverse want of sympathy on the part, of the guardian for his views and desires. The great author of “The Confessions of an English Opium Eater” had his whole life wrecked and shattered by the want of sympathy on the part of a cold and rigorous guardian for the views of a youthful genius on the subject of his education.

No good reason can be given for allowing one boy to select his own guardian because the occasion arises after he is fourteen, and denying to another the same right because some county judge has selected a guardian for him before he reached fourteen. The object of the common law rule was to give the minor a chance to have a guardian who would be, at least, personally agreeable to him, and, therefore, when he reached the age of discretion he was permitted to supersede any former guardian and nominate one of his own choosing. The same reason exists now as did then; and while the language of the statute is not as clear as it might have been made, yet we think its reason and spirit require that it simula be construed as not changing the common law rule, except to this extent: After the infant has had one choice, he cannot supersede a guardian of his own nomination by another, unless the guardian be removed for the causes set out in the statute.

It will be observed that the statute authorizing the minor to choose his own guardian after arriving at four teen, does not commit this important matter to his un-, restrained choice, but the county judge has a supervisory direction over his choice, and unless the guardian

Lucas v. Commonwealth. 281 selected by the infant meets the approbation of the county judge, he may require the minor to make another choice, and so on until the selection of the minor meets the approval of the judge. This, we think, is a wise and beneficent statute, giving the infant the fullest latitude consistent with his welfare, and effectually preventing his being misled by the wiles of artful and designing persons who might seek to ingratiate themselves into his inexperienced affections for selfish and sinister purposes. For these reasons we are constrained to affirm the judgment of the lower court permitting the ward to supersede a former guardian appointed for him prior to the time he had arrived at the age of fourteen years by nominating a guardian of his own choosing; and it is so ordered. (Decided December 14, 1910.) Appeal from Bourbon Circuit Court. Homicide— Evidence — Competency— Proof of Character ■— General Reputation. — On tbe trial of D. for manslaughter by killing S., the court did not err in refusing to permit a witness to testify that he had a conversation with S. wherein S. said -to the witness that he intended to quit work: that he was a “short change” artist and could make a living easier than by working. The rule is that the inquiry must relate to the violent and dangerous character of the deceased. Proof of such character can only be made by his general reputation in the community for such character, and not by evidence of specific acts or general bad conduct, or by isolated facts which are not connected with the homicide. EMMETT M. DICKSON and J. J. WILLIAMS for appellant. JAMES BREATHITT, Attorney General, and TOM B. Mc'GREGOR, Asst. Attorney General, for appellee. Opinion op the Court by Wm. Rogers Olay, Commissioner- — • Rever sing. Appellant, W. H. Lucas, was convicted of manslaughter and his punishment fixed at confinement in the penitentiary for a period of three years. From the judgment of conviction he appeals.

The facts, briefly stated, are as follows: Appellant was a former resident of Harrison and Bourbon comities, Kentucky. For several years prior to the killing he resided in the State of Indiana. In February, 1909, he returned to Kentucky and was engaged in farm labor nearly all the time between his arrival in Kentucky and the time of the, difficulty which resulted in the killing. On the night of September 25, 1909, he, in company with his friend and kinsman, William Dailey, boarded a train leaving Cynthiana at about 10:30 o’clock and readied Paris shortly before 11:00 o’clock. Upon their arrival in Paris they went to a boarding house kept by one Janies Curtis in the xdeinity of the depot. Curtis was a friend of Dailey’s. There they ate supper and remained for a few minutes. They then went to a saloon kept by a man by the name of Lyons, where one Phillips, who was likewise a friend of Dailey’s, was employed. At this saloon they met a man by the name of Bud Harney. Harney was formerly a resident of Harrison county, and was an acquaintance of Dailey’s. He was not present when the difficulty took place. After remaining at this saloon for a few minutes, Harney proposed that they go across the street. He then conducted them to a saloon kept by a man by the name of Mike Woods. There Harney proposed a drink, and they each took a glass of beer. Dailey then purchased the second glass of beer for each of them. Appellant Lucas drank only a portion of this second glass and poured out the rest. While there, Dailey, the companion of Lucas, also purchased a bottle of whisky, for which he paid a dollar. About this time appellant asked Harney where he was going to stay all night. Harney replied that he did not know. Appellant said that he (Lucas) had a notion of staving all night with him (Harney). Harney said, “I will furnish a place to stay if you want to play seven-up.” Appellant replied that he had no money with which to play seven-up; whereupon Harney said, “I will stake you.” Appellant replied, “No, I don’t want to gamble.” At this juncture Dailey said he had the money, but did not want to gamble; and thereupon exhibited a roll of one and two dollar bills. Taking one of the dollar bills he paid for the bottle of whisky and placed the remainder in his pocket. Clarence Prebbie was the barkeeper at this saloon. The aforesaid conversation took place in his presence. Stone, another prosecuting witness, was in a rear room and could have seen and heard what was going on. Whether he did or not does not appear. After Dailey made the remark about having the money, he and appellant left the saloon and, at the direction of Harney, proceeded to the Fordlmm Hotel for the purpose of securing lodging for the night. There they were informed the hotel was full and that they could not be accommodated. It was then about 12 o’clock. Appellant and Dailey left the hotel and returned to Lyon’s saloon, where Dailey’s friend, Phillips, was employed. When they reached there they found the saloon had closed and Phillips gone. They then went back to Woods’ saloon. Woods was just coming out and announced that his saloon was closed.

From this point on the evidence is very conflicting. According to the testimony for the Commonwealth, Prebble, Woods’ barkeeper, closed the saloon preparatory to taking a walk, which was his usual custom. He was joined by three men, one by. the name of Fronk, one by the name of Stone, and one by the name of Sagaser, who was afterwards killed. Near the corner of Ninth and Main streets they came upon Dailey and appellant. Either appellant or Dailey asked them where they could secure accommodation for the night. They were informed that there were a number of hotels and boarding houses in the city; that there was a boarding house a short distance from where they stood. Appellant replied that they did not want to go to a hotel or boarding house, but would like to find a livery stable or some other place and await the departure of the early morning train for Cynthiana. One of the parties accompanying Sagaser informed them of a certain livery stable where he had a friend employed and who, he claimed, would be glad to accommodate them. The whole party proceeded in the direction of this livery stable until they arrived at the corner of Seventh and Pleasant streets near the Methodist church. There Sagaser, the deceased, and one of the prosecuting witnesses was about to leave the crowd. Appellant was informed by this witness that another member of the party would show them where the stable was. Just as the party was about to separate, Dailey said something about taking a drink of whisky. Sagaser, the man who was killed, replied that lie would not object to taking a drink. Dailey offered them a drink of whisky out of the bottle he had previously purchased at Mike Woods’ saloon. Appellant, who was some distance in advance of the crowd, spoke up and told Dailey not to let any of those parties (using a vile epithet) have any of the whisky. Sagaser became offended at this remark, and told appellant not to be so G-od damned rough about it. At this juncture, according to one of the witnesses for the Commonwealth, Dailey raised his hand and was in the attitude of striking Sagaser. From the evidence of the other two witnesses for the Commonwealth, who were present, it would seem that Sagaser began to advance towards appellant. It was then that appellant pulled his pistol and fired three shots, one of them taking effect and producing a morial wound.

Upon leaving Woods’ saloon, the testimony, of appellant and Dailey is to the effect that they found three or four persons standing in front of the saloon, all of whom were strangers to appellant and Dailey but one, whose name was William Stone, and who was one of the prosecuting witnesses in this case. Appellant asked Stone to direct him to the Louisville & Nashville depot. Stone did direct him. Just at this time, Dailey, who had walked on, called to appellant and said that he (Dailey) knew the way. Thereupon appellant joined Dailey. They walked north on Main street about a half a block where Seventh street crosses Main street. They then turned to the right and went east on Seventh street until they reached Pleasant street. Upon the northwest corner of these two streets stands the Methodist church. Here it was the difficulty occurred. Just before reaching this point appellant and Dailey were joined by four -men who afterwards proved to be Prebble, Stone, Fronk and Sagaser, the man who was killed. One of the four men asked appellant and Dailey where they were going to stay all night. Dailey told them he was going to old man Curtis’; that Curtis kept an all night house and that he (Dailey) was going to stay there in order to get oil on the early morning train to Cynthiana. Dailey fell back of these men and appellant walked about 15 feet in advance of them. About the time they reached the corner of Pleasant and Seventh street, appellant looked back and saw one of the men, who proved to be Sagaser in the act of striking Dailey with something in his hand. Whereupon appellant said, “Oh hell, boys, don’t do that.” Thereupon Sagaser turned from Dailey and advanced upon appellant, striking at him twice. As lie did this, appellant drew his pistol and fired three times in rapid succession. Immediately after shooting, appellant asked Dailey what that fellow hit him for. Dailey replied, “Those fellows meant to rob us.” About an hour after the difficulty a slung shot was found on the church steps. It was shown that this slung shot had been given to Sagaser about two days prior to the killing. Several witnesses testified that Sagaser’s reputation for peace and quiet and good order was bad, while that of appellant was good. In rebuttal two or three witnesses, who saw appellant and Dailey after the killing testified that appellant said he was drunk and had no recollection of having killed anybody. They also said they did not see any bruise on Dailey’s face,' though they did not examine him for that purpose.

Instructions one and two, given by the court, are in. the usual form and are not complained of. Instruction three is as follows:

“The court instructs the jury that if they believe from all the evidence that the defendant, Lucas, believed and had reasonable grounds for believing, that at the time he shot and killed William Sagaser, if he did shoot and kill him, that he was then and there in danger of loss of life or great bodily harm at the hands of said Sagaser, or if they shall believe from the evidence that at the time said Lucas shot and killed said Sagaser, if he did shoot and kill him, that he believed and had reasonable grounds for believing that his kinsman and companion, Dailey, was then and there in danger of loss of life or great bodily harm at the hands of said Sagaser, or if they shall believe that at the time of said shooting and killing, it reasonably appeared to the defendant to be necessary to shoot and kill said Sagaser to avert the then impending danger, or- apparent danger, or loss of life, or great bodily harm, then he had the right to so shoot and kill said Sagaser, and the '¡ary should acquit him on the ground of self-defense.”

Counsel for appellant asked the court to give the following instruction:

“A-3. The court instructs the jury that although they may believe from the evidence that Lucas shot and killed William Sagaser, as charged in the indictment, yet, if they further believe that, at the time he did so shoot and kill Sagaser, said defendant believed and had reasonable grounds for believing that he or his kinsman and companion, Dailey, was then and there in danger of loss of life or of great bodily harm at the hands of said Sagaser, or of his companions, William Stone, Clarence Prebble, Pearce Fronlc, or any or all of them acting in concert or conspiracy with said Sagaser, or if they shall believe that at the time of said shooting, it reasonably appeared to the defendant to be necessary io shoot and kill said Sagaser to avert the then impending or apparent danger of loss of life or great bodily harm, either to himself or to said Dailey, at the hands of said Sagaser and his companions, or any of them acting in concert or conspiracy with him, then he had the right to so shoot and kill Sagaser, and the jury ought to acquit him on the ground of self-defense.”

This instruction the court declined to give, and tlie error of the court in this respect is relied upon as the chief ground for reversal.

When we take into consideration the fact that tiie record shows that Prebble, Stone, Fronlc and Sagaser were companions; that Prebble was Woods’ barkeeper, and the other three were habitues of the saloon where he was employed; that according to Prebble’s own testimony, all four left the saloon at 12:30 a. hi., without saying anything about going home, and merely fomthe purpose of taking a walk, and that “all had to come back;” that at least one of the four knew that Dailey and appellant had been drinking, and that Dailey had on his person a roll of money; that the evidence for appellant tends to show that these four parties followed appellant and Dailey up the street; that no difficulty or altercation occurred while they were on Main street of the city; that Sagaser had upon his person a slung shot, a dangerous weapon well adapted for the purpose he had in view in case the testimony for appellee is to he believed; that upon reaching a dark and secluded spot, Sagaser, without any angry words having been previously used, suddenly struck Dailey in the head with the slung shot, we conclude that there was sufficient evidence of the fact that all four parties were acting in concert to authorize the giving of the instruction asked for by appellant. It is not for us to express an opinion upon the facts-of this case, one way or the other. It may he that Sagaser acted entirely independent of the others, and that they had no unlawful purpose at the time. On the other hand, it may he that they were acting in concert and were there for the purpose of aiding, abetting and assisting Sagaser; whether the one or the other, it ife for the jury to say. Upon the next trial the court will give the instruction asked for.

The court did not err in refusing to permit the witness, Steagall, to testify to a conversation which Tc-had with Sagaser, in September, 1909, wherein Bagasen* said to the witness that he intended to quit work; that he was a “short-change” artist and could make his living easier than by working. The rule is that the inquiry must relate only to the violent and dangerous character of the deceased. Proof of such character can only be made by evidence of his general reputation in the community for such character, and not by evidence of specific acts or general bad conduct, or of isolated facts which are not connected with the homicide. (Trabune v. Commonwealth, 13 Ky. Law Rep., 343; Ferrell v. Commonwealth, 15 Ky. Law Rep., 321.) The same rule would exclude conversations had with the deceased.

Other alleged errors are complained of, but, as the matters to which they relate are not such as will likely occur on another trial, we deem it unnecessary to consider them.

Judgment reversed and cause remanded for a new trial consistent with this opinion.

Whole court sitting.

Judges Carroll, Settle and Passing dissenting.