Bellomy's adm'r vs. Bellowy, &c. CASE 34-PETITION EQUITY-JANUARY 17. Bellomy's adm'r vs Bellomy, &c. APPEAL FROM TODD CIRCUIT COURT. An administrator de bonis non is entitled to the possession of the unadministered assets of his intestate; but, appealing to equity against the heirs and administrator of the first administrator of his intestate, and also against the heirs of his intestate, for possession of uncollected notes belonging to the estate of his intestate-it appearing that more than five years had elapsed since his intestate's death, and that the notes were not necessary to pay his debts—to avoid circuity and delay, and save the distributees from unnecessary commissions, the circuit court did not err by dismissing his petition and decreeing a distribution of the estate without permitting it to pass through the hands of the administrator de bonis non. S. W. KENNEDY, CITED 1 B. Monroe, 62; Jones vs. Everman. For Appellant, 15 B. Monroe, 633; Maraman vs. Turnell. H. G. PETREE, CITED For Appellees, 7 J. J. M., 147; Fitts vs. Brown's adm'r. 3 Mon., 358; Graves vs. Downey. 5 Mon., 20; Slaughter vs. Froman. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: Penick, as administrator of Bellomy, having, by a proper proceeding, procured the sale of land to pay a debt due to his intestate as vendor of the land on which he held a lien, the notes of Glass, as purchaser at that 3b 109 100 356 Bellomy's adm'r vs. Bellomy, &c. sale, like the notes for paying which the land was sold at the administrator's instance, were personal assets in his hands as administrator; and Glass's notes, never having been collected or otherwise disposed of, were unadministered assets, which the appellant, as administrator de bonis non after Penick's death, had a right to administer, if necessary for paying debts. But, appealing, as he did, to a court of equity against Penick's personal representatives and Bellomy's distributees, to give him the possession of the notes, he should not complain of the dismission of his petition unless it was, under all the circumstances, inequitable. Having no beneficial interest in the notes, his only right to the surrender of them to himself was to enable him, as a fiduciary, to pay the intestate's debts and make distribution among those entitled to it. But he has not shown that any debts remain unpaid; and, therefore, the lapse of more than five years from the intestate's death to the date of the decree, authorized the presumption that these notes are not necessary for payment of debts; and this presumption is fortified by the fact that Penick's representatives had surrendered to the appellant a large number of other notes, and other unadministered assets, yet unaccounted for. To avoid circuity and delay, and save the distributees from unnecessary commissions to the appellant, they insisted on a decree for distribution in this case, and at once. Considering this equitable, the circuit court directed Penick's executors to collect the notes on Glass and make distribution of the fund among Bellomy's distributees, after paying any unpaid debts of their intestate, if any such should, in the meantime, be discovered. This seems to assure to the appellant all proper exoneration from contingent liability, and does not appear to subject him to any un Sparks vs. Commonwealth. just privation or risk. And it does appear to be just to the distributees, and proper for saving them from unnecessary delay and possible spoliation. Under these circumstances, it seems to this court that there was no essential or available error in withholding the chancellor's invoked aid to compel the surrender of Glass's notes to the appellant. Wherefore, the judgment appealed from is affirmed. 1. If a man, contrary to law and good order and public security, fire off a pistol in the streets of a town, and death be thereby produced, he must answer criminally for it, whether it be malum in se or merely malum prohibitum, and especially when he knows he is violating law. 2. "If the jury find from the evidence, beyond a reasonable doubt, that, in January. 1867, in the corporate limits of the town of Owenton, in Owen county, Kentucky, the prisoner upon trial, George W. Sparks, intentionally, wantonly, and carelessly fired off and discharged a loaded pistol, loaded with powder and ball or other hard substance, and this within the corporate limits of said town of Owenton, and upon one of the public streets of said town, such discharging of said pistol and shot killed George Wood, in so discharging his said pistol, such killing is manslaughter, and the jury should find the prisoner guilty of manslaughter, and punish him by confinement in the peniteutiary for a period of not less than two nor more than ten years, and this without regard to whether the prisoner at the time he fired his pistol had or had not an intention to kill the said Wood or any other person." Held-That this instruction was properly given by the circuit court. 3bu 111 f129 243 3. 4. Sparks vs. Commonwealth. "If the jury find that the prisoner, George W. Sparks, intentionally and in a wanton and careless and reckless manner fired off and discharged his pistol on a public street and thoroughfare in the town of Owenton, in Owen county, Kentucky, and thereby shot and killed George Wood, such killing is aanslaughter, and the jury should so find, and fix his punishment by confinement in the penitentiary for a period of not less than two nor more than ten years, and this without regard to whether Sparks intended to kill Wood or not." Held-That the foregoing instruction was properly given by the circuit court. If, in executing an unlawful purpose, the pistol should accidentally and prematurely go off, the accused would be criminally as liable as if he had deliberately shot it. The homicide in each case would primarily result from the recklessly executing, or attempting to execute, an illegal purpose. Unlawful conduct in either case would be the pri- . mary cause of the homicide. 5. "That if they have a reasonable doubt of the truth of any fact, any series of facts, or propositions necessary and essential, in their judgment, to the conclusion of guilt, that the prisoner is entitled to the benefit of that doubt, and they must acquit him." Held-That the foregoing instruction, "independent of any mere verbal criticism, essentially refers to the jury to determine what facts are essential to the conclusion of guilt, and then to determine whether such facts be established by the evidence beyond a reasonable doubt, which, in effect, refers the whole law and facts of the case to them;" and that it was properly rejected by the circuit court. P. U. MAJOR, CITED For Appellant, Wharton's Crim. Law, 4th ed., 447, 448, 449, 452, 387. 1 Hale, 431; East. P. C., 261. 1 Bishop's Crim. Law, secs. 414, 415, 416. Burrill on Cir. Ev., pp. 181, 734, 735, 736, 737. 1 Duvall, 228; Smith vs. Commonwealth. Criminal Code, secs. 236, 237. JOHN RODMAN, Attorney General, CITED For Appellee, 1 Russell on Crimes, p. 637; Roscoe's Crim. Ev., 687. 2 Duvall, 164; Galliher vs. Commonwealth. Sparks vs. Commonwealth. JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT: Appellant, upon an indictment for the murder of Geo. Wood, was convicted of manslaughter, and sentenced to two years' service in the State penitentiary. He seeks a reversal of that judgment. It appears, that, though there had previously been hard feelings and jealousy between appellant and deceased, growing out of their rival attentions to a young lady, yet, being cousins, appellant spent a large part of the Christmas holidays with decedent at his father's, in Owenton, Owen county, and they appeared to be friendly; when, January 2d, 1867, appellant and decedent, together with some others, were walking through one of the streets of the town, decedent but a few feet behind appellant, with another person by his side, and another gentleman by the side of appellant, when the latter inquired what was the fine for shooting in town, and said "Let us have a Christmas gun." One of the gentlemen addressed remonstrated against shooting, saying "They will fine you;" but appellant reached behind as if to draw his pistol from its resting-place, threw it over his shoulder, and nearly halffacing around, the pistol was fired, and the decedent shot in the breast, the bullet ranging downwards, and of which he died in about twenty minutes. Upon the facts substantially stated the court gave and refused instructions. Only those complained of need be. alluded to. The second and third instructions, given at the Commonwealth's instance, are as follows: 2. "If the jury find, from the evidence, beyond a reasonable doubt, that in January, 1867, in the corporate limits of the town of Owenton, in Owen county, Kentucky, the prisoner upon trial, George W. Sparks, intentionally, wantonly, and carelessly fired off and dis VOL. III-8 |