of all liability. The expression "must be liberally construed in favor of the insured," allows, and in fact necessitates, that the weaker reasoning be supplemented by a liberal allowance so as to, if it will, outweigh the better and more technical course. If the terms were clearly in favor of the assured, there would be no place for the rule invoked. And if the weaker construction could not be supplemented by the course suggested, then the efficacy of the rule would be destroyed. The reason for the rule is that the insurer with deliberation and care has set down in its own language the conditions of its contract; if it is not unreasonably susceptible of a construction against the insurer then it is likely that the assured understood it that way. It would not be right to allow such a deception to prevail, as would follow if a technical construction were allowed to defeat a possible and not impracticable one imported by the terms. Having the choice of words, the insurer ought to have so expressed itself as to leave no doubt, and as to forestall misunderstanding. The policy under investigation has been quoted from as if the clauses being considered stood together, and were alone related. But that is not the fact. They are widely separated. The intervening matter might well lead the attention astray from the relation of the two. The whole instrument is ingeniously constructed so as to hold out hope in one part, while defeating it in another. It would be possible under a liberal application of the terms of the policy, for the insurer to always evade the payment of any indemnity under the paralysis clause, no matter how prompt and full and numerous the notices. Certainly the insured at least could never have contemplated such an operation of the contract. He was contracting for indemnity for the loss of ability to work from certain accidents and diseases. He paid for that indemnity, and carried the policy for years. His contract was so complicated that his attorney, having choice of courses, gave the contract the construction we have reached in giving notice. The circuit judge trying the case gave it the same construction. At the worst the judges of this court had grave doubt about the proper construction. This, then, is one of those cases calling for the application of the rule first quoted. The provision as to final proofs was waived by the company's denial of all liability when the initial notice was given to it. The demurrer to the paragraphs of the answer based upon lack of notices was properly sustained, it being conceded by the answer that notice was given before the suit, and nothing appearing in the pleadings that it was not within two months of the development of total paralysis of the one leg and one hand. The other questions discussed in briefs depend upon the facts as shown by the evidence. We think the court below found the facts correctly, and the judgment will not be disturbed. Affirmed. The whole court sitting. Dial v. Commonwealth. (Decided February 2, 1911.) Appeal from Kenton Circuit Court Felonies-Time of Commission -Trial- Indictment- Indeterminate Sentence Act-Trial Thereunder-Jurisdiction.-Defendant Dial was indicted for subornation of perjury, committed in 1909. The indeterminate sentence statute was passed in 1910. On the trial of defendant the circuit court did not leave to the jury the fixing of the penalty, but adjudged that he be confined at hard labor in the penitentiary from one to five years. Held, this was The jury must fix the penalty in this case. See Lee Stewart v. Commonwealth, 141 Ky. Reports 522, holding that the indeterminate statute applies only to prosecutions for offenses committed since that act became effective. error. (No counsel for appellant.) JAMES BREATHITT, Attorney General, and T. B. M'GREGOR, Assistant Attorney General, for appellee. OPINION OF THE COURT BY JUDGE O'REAR-Reversing. Appellant was convicted of the crime of subornation of perjury. He is an attorney at law. It was charged that he corruptly procured one Frank Mitchell, alias J. W. Keys, to swear falsely as to certain material evidence as a witness in a suit for divorce between Fred Dorste and wife, lately pending in the Kenton Circuit court, in which appellant appeared as attorney for Dorste. Mitchell, alias Keys, had been indicted for perjury in the same court and convicted, under his plea of guilty. Judgment was pronounced and entered upon the verdict. At the same term, and while the court had yet control over the judgment, upon the motion of the Commonwealth, concurred in by the accused in open court, the judgment against Mitchell alias Keys was set aside. Appellant's case was tried before a special judge of the Kenton circuit court and a jury. While appellant's case was being tried, the regular judge of the court, who had presided at the trial of Mitchell, alias Keys, entered the order in his case setting aside the judgment. Thereupon the said Mitchell was introduced as a witness against appellant. Without detailing his testimony, it is enough to say that he stated that his testimony in the divorce case was false, and that appellant procured him for pay to so testify knowing that he knew nothing about the facts deposed to. Section 1173, Kentucky Statutes, prescribed a penalty for the crime of perjury; section 1174, Ib., for the crime of false swearing, and sections 1175 and 1176 relate to false swearing in corporation reports and before election boards. Section 1177, reads: "If any person shall unlawfully and corruptly cause or procure another, by any means whatever, to commit the offense or offenses described in the four preceding sections he shall be guilty of subornation of perjury, and confined in the penitentiary for not less than one or more than five years." Section 1180, Ibid., reads: "If any person be convicted of any of the offenses described in the seven preceding sections, he shall ever afterwards be disqualified from giving evidence in any judicial proceeding, or from being a witness in any case whatever." It is now the contention of appellant that the witness Mitchell, alias Keys, was disqualified to testify in this case because of his previous conviction of the crime of perjury. The word conviction has a two-fold meaning. One is the determination of the fact of guilt, as by the verdict of a jury (Fanning v. State, 47 Ark. 422, 2 S. W. 70; People v. Rodigo, 69 Cal. 601; Bishop Stat. Cr. Sec. 348); or by confession (4 Bl. Com. 362; Ex Parte Brown, 68 Cal. 176). The other and the one in which it is employed in speaking of a state of infamy, denotes the final vol. 142-2 judgment in the prosecution. (Com. v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699; Com. v. Gorman, 99 Mass. 420; Quintard v. Knodder, 53 Conn. 485, 2 Atl. 752, 55 Am. Rep., 149; State v. Parnes, 24 Fla. 153; Francis v. Weaver, 76 Md. 457; Reg. v. Hawfalt, 33 Nova Scotia, 165; Com. v. Miller, 6 Pa. Sup. Ct. 35; Smith v. Com., 14 Serg. & R. 69; Faunee v. People, 51 Ill. 311; Ammidon v. Smith, 1 Wheat, 447; Nason v. Staples, 48 Me., 123.) Greenleaf, Evidence (Sec. 375) lays it down, that: "The mere verdict of the jury is not sufficient for this purpose; for it may be set aside, or the judgment may be arrested, on the motion for that purpose. It is the judgment, and that only, which is received as the legal and conclusive evidence of the party's guilt, for the purpose of rendering him incompetent to testify." (State v. Price, 100 S. W. 771 Texas.) When, therefore, the judgment of conviction has been set aside by the court rendering it, when it had jurisdiction to do so, the verdict stands as if the judgment had not been rendered. The witness was not then disqualified when offered by the Commonwealth on this trial. The Kenton circuit court, the regular judge presiding, had jurisdiction to enter an order in Mitchell's case, although a special judge of the same court was at the same time sitting in another case. Nothing in the statute forbids the two judges from sitting at the same time in different cases. There was abundance of corroborating circumstances and evidence to justify the submission of this case to the jury. It is scarcely to be expected that in such a transaction the parties would call a witness to it, or reduce it to writing. Hence corroboration must generally be from circumstances. The offense charged against appellant was committed in 1909. The indeterminate sentence statute was passed in 1910. The circuit court did not leave to the jury the fixing of the penalty, but adjudged that he be confined at hard labor in the State penitentiary from one to five years. This was error, as held in Stewart v. Commonwealth, decided at this term (141 Ky. 522). The jury must fix the penalty in this case. But, it is insisted by appellant that as the statute which allowed the jury to fix the penalty is now repealed, therefore there is not any tribunal to apply it, and he must go free. Not so. Section 465, Kentucky Statutes, expressly saves such case, and preserves the old statute as to its penalty for of fenses committed under it. The judgment is reversed for the error indicated, and cause remanded for a new trial under proceedings not inconsistent herewith. Wickliffe, et al. v. Farmers Bank of Frankfort. (Decided February 2, 1911.) Appeal from Ballard Circuit Court. Judgments-Correction After Term-Jurisdiction at Subsequent Term-Appeal.-A circuit court has no jurisdiction at a subsequent term to set aside a judgment of a former term on the ground that it was erroneous, or because the proceedings were irregular. After the term, these matters can only be inquired into and corrected by appeal based upon the original record or such as might be legally substituted for it by the circuit court. J. B. WICKLIFFE for appellant. CORBETT & WHITE and JAS. H. POLSGROVE for appellee. OPINION OF THE COURT BY JUDGE O'REAR-Affirming. In an action by appellee against appellants upon a bond of indemnity against loss of certain deposits made by appellee in the Farmers Bank of Wickliffe, the judgment was for appellee. It appears that the papers in the case were lost. Judgment was rendered at the April term, 1910, of the Ballard circuit court. At the August term, 1910, the appellants filed a petition in the same case for a new trial, and gave notice that they would apply to have the judgment rendered in April set aside. The circuit court refused to grant the new trial. The appeal is from the first judgment. The original papers have not yet been found, so far as the record before us shows, nor have they been supplied by . substituted record. It is, therefore. impossible for us to know what was in the former record. The presumption is, it would sustain the judg ment. The circuit court had not jurisdiction at a subsequent term to set aside the judgment on the ground that it was erroneous, or because the proceedings were irregular. After the term those matters could be inquired into and corrected by this court only upon an appeal based upon the original record, or such as might be legally substituted for it by the Ballard circuit court. Upon the record before us there does not appear any error. Judgment affirmed. |