although incompetent to contract (Craddock v. Tyler, 3 Bush, 360; Connolly v. Branstler, 3 Bush, 702). Before the appellant could recover she should be required to restore the property or its equivalent sum, if the statute of limitation was not relied on, so in either view of the case the judgment must be affirmed.

Baker & Toney for appellant.

Goodloe & Roberts and Alex. P. Humphrey for appellee.

CUMMINS v. COMMONWEALTH.

(Filed December 8, 1883.)

1. The evidence in this case is held sufficient to show the parties guilty as co-conspirators, and they are, therefore, disqualified to testify in behalf of each other.

2. The evidence did not authorize an instruction based on voluntary manslaughter.

Appeal from Bracken Circuit Court.

Opinion of the court by Judge Pryor.

We have seldom read a record where a conviction has been had with fewer mitigating circumstances than the one before us. The parties entered the residence of the deceased, where his friends and neighbors were enjoying his hospitality, and without the slightest provocation the appellant began to flourish his knife and make other demonstrations, evincing his intention to take possession and end the pleasures of the young people, who, by invitation, had gone to the house of the deceased. All but the accused and his company were there because the deceased wanted them, and it may be that the accused and his friends were provoked at not being invited. They went into the unfortunate man's house in a drunken condition, and evidently with the design of breaking up the party. Pistols and knives were in their possession and all of them ready to use them upon the slightest interference with their designs. The deceased saw their condition and was standing in the door of his room after Smith had been ejected, entreating them to behave and return to the room and participate in the enjoyment, and while extending his hospitality in this manner, after such cruel treatment, the crack of the pistol is heard and Myers falls dead in the arms of his wife.

There is no palliation or excuse for the murder, and whether Cummins shot or Weaver is immaterial, they were equally guilty. The proof conduces to show that Cummins fired the pistol, and this is strongly corroborated from the fact that he entered the room with knife in hand, having then a murderous intent without the slightest excuse. He was the leader of the gang, and while Weaver hung himself next day, declaring beforehand that he fired the shot, still the proof conduces to show that the accused was the guilty party. The question of fact was with the jury, and what Weaver said about it was properly excluded. The co-conspirators were offered as witnesses to prove that there was no conspiracy, and that Weaver shot. The proof that they were together and united in breaking up the party and taking this man's life is conclusive, and the court properly excluded their testimony.

Smith, one of the conspirators, as soon as he reached the house of Myers, took McElfresh to one side and told him that he was going to raise hell there. Cummins, the accused, then came up, yelling and cursing, jumped into the house, with a knife in his hand, saying hands off, or he would cut hell out of the first man that laid hands on him. Snodgrass was standing at the door cursing. These are the parties who were proposed to be introduced as witnesses for the defense, and who are jointly indicted with the accused, it being alleged in the indictment that they conspired to take the life of the deceased.

There are other facts showing a purpose on the part of these parties to invade the house of the deceased and assume control of the party, and whether the proper avowal has or not been made as to what the parties would prove, the facts of the record present such a state of case as authorized the court to exclude them as witnesses. Smith and Snodgrass were both at the door when deceased was shot. They were then being invited in by Myers, he telling them that he was their friend, but instead of coming in they would push first one and then the other into the door, and in this drunken condition took this man's life in the door of his own house and in the presence of his family, without excuse, justification or provocation, and in the midst of the poor man's entreaties to behave themselves July, 1884-3

and enjoy, if they desired, the hospitality of his humble home. There is nothing in the case authorizing an instruction based on voluntary manslaughter.

The judgment below is affirmed.

R. K. Smith for appellant.

P. W. Hardin for appellee.

SNAPP v. COMMONWEALTH.

(Filed June 14, 1884.)

1. Larceny - Rightful possession-A city tax collector having employed accused as his clerk to collect taxes due the city, and the latter having collected taxes which he failed to pay over, Held-That he was civilly liable only and not criminally for larceny, since the money had come rightfully into his possession. Where one comes lawfully into possession he does not become guilty of larceny by subsequently converting property to his own use. 2. Evidence - Distinct offenses-The general character of the accused, his disposition to commit crime, are not ordinarily admissible evidence; nor on the trial of an indictment for larceny is evidence admissible that accused committed another larceny about the same time or a series of such offenses. But in some cases where the question of scienter or intent is raised, evidence of other offenses similar to the one charged is admissible.

3. Evidence-Nor is evidence admissible in such case of extravagant habits of the accused or of the fact that he spent at a time prior to the larceny charged sums exceeding his salary.

Appeal from Jefferson Circuit Court.

Opinion of the court by Judge Pryor,

The grand jury at the April term, 1883, of the Jefferson Circuit Court, returned an indictment against the appellant, Cope J. Suapp, containing two counts, one for embezzlement and the other for grand larceny. He was convicted of grand larceny and has appealed to this court. It was alleged in the one count that while acting as clerk for one David Ferguson, back tax collector of the city of Louisville, he had embezzled $342.88 of money belonging to the city, and in the other that he had feloniously taken and converted to his own use the same amount and the same sum of money, and was, therefore, guilty of grand larceny. The money said to have been the subject of the larceny was paid to the appellant by Clemerson in a check one of the Louisville banks in discharge of taxes due by

on

one Newman. The prosecution and the defense both established the fact that Ferguson was the back tax collector for the city from the month of April, 1881, to December, 1882, and it is a fact conceded that during that period he was a defaulter to the city on account of moneys collected in a sum largely exceeding $50,000. He was indicted for embezzlement, tried and convicted of the offense and finally released from prison by executive interference. The appellant, Snapp, was the chief clerk and cashier of Ferguson, and, from the testimony, seems to have had almost the entire control of the office and, the moneys collected. Ferguson received for his services a commission on the amount collected and employed Snapp (the accused) as his private clerk out of his own means, paying him for his services $75 per month. Under the law defining his duties as back tax collector Ferguson was required to settle his accounts with the city treasurer, and pay over the money collected by him at the end of each week, but this he neglected to do, and settled once in two or three weeks. The reports to the treasurer evidencing the amount of money collected by him were usually, perhaps always, made out in the handwriting of the accused and signed by Ferguson. There was in the office of Ferguson two books, called the ledger and cash book. In the one was inserted the names of those owing back taxes, and the amount, also the amount paid by them; and in the other was the amount of cash received at various times from those paying it. When money was paid tickets were made and placed with the cash in the cash drawer and the money usually taken from the drawer and deposited in some one of the banks to Ferguson's credit. The safe in which the books were kept, and sometimes the money, as well as the office, was furnished by the city. The appellant seems to have made the deposits generally, and the money when required by Ferguson was checked out on his order, to be paid either to the city treasurer or to those entitled. Ferguson was at the Hot Springs from May 20, 1882, until the 10th of June of the same year, and during his absence it appears that one Newman was indebted to the city for taxes on his property for the years 1878, 1879, 1880 and 1881. For the last two years the money was going to

the tax receiver of the city, and not to the back tax collector. The entire amount of taxes due was paid by one Clemerson in. a single check, and this check delivered to the appellant, Snapp, who indorsed it and then delivered it to the clerk of the tax receiver. The bank where it was payable cashed the check and the tax receiver or his clerk retained the amount due him and paid the balance to the appellant, that balance, $342.88, belonging to the back tax collector's office. All of this sum Snapp is proven to have accounted for except $169.45, the amount of Newman's taxes for the year 1879. This sum was not entered on the cash book or accounted for by Ferguson in his settlement with the city treasurer after his return home, nor has the city, so far as this record shows, ever received it. The same day Snapp received this money ($342) he deposited in bank to Ferguson's credit $550, and claims to have accounted to Ferguson for all this money received by him. There was a plea of not guilty entered, and the burden was on the Commonwealth to show a felonious taking of this money and its conversion by the accused before he could be convicted of larceny. The failure of either to account to the city for the money did not make either guilty of larceny. Ferguson's duty was to account to the city treasurer, and Snapp's duty was to account to his principal, Ferguson, and while the failure to account showed the one or the other or both to have been in default, still it made neither guilty of a felonious taking of the money belonging to the city.

The prosecution was permitted to prove, in order to a convietion, that, during the absence of Ferguson in the South, there had been paid into the office of the back tax collector at various times (the accused being in charge of it) the sum of $6,900, and that nearly $2,000 of that sum had never reached the city treasury or been accounted for by Ferguson. The appellant objected to the introduction of this testimony, and his objections were overruled, to which an exception was entered.

The prosecution, after issue formed between the accused and the State, undertook to convict the appellant of larceny in taking the $342, amount paid him of Clemerson's check in discharge of numeorus tax bills, and the testimony was directed