
    Case 113 — INDICTMENT FOR HORSE STEALING
    June 17.
    Gilbert v. Commonwealth.
    APPEAL FROM OWEN CIRCUIT COURT.
    1. Criminal Law — Indictment for Horse Stealing — Instructions.— Upon the trial of an indictment for horse stealing it is error to instruct the jury ,to convict if the defendant received the horse knowing it to have been stolen.
    2. Same — Misconduct of the Commonwealth’s Attorney. — -It was misconduct of the Commonwealth's Attorney to state to the jury in his argument, (first), that when a defendant was brought to trial for horse stealing, he always .had .an affidavit as to what two or three mythical witnesses would state that nobody knew, although in this case James Renfrow and William Hedger were actual persons; (second), that he could if he had the witnesses prove by fifteen or twenty as good men as lived in the New Liberty precinct that William Keefe and George See were in the neighborhood until 11 o’clock that Saturday night and that he could prove a perfect alibi for William Keefe and George See; (third), that when J. L. Piner testified at the examining trial, this defendant found out that his story to S. D. Duvall, the sheriff, would not work and he changed it; (fourth), that he had here somewhere the minutes of the examining court and that the said, minutes would show that J. L. Piner testified at the examining court to all that he testified to in this trial,” when the fact was that J. L. Piner only testified before the grand jury; and this misconduct of the Commonwealth’s Attorney was not cured by the court stating to the jury “yon will consider only the proof before you.” _
    3. Evidence. — Defendants jointly indicted with the appellant and to whom a separate trial had been awarded, were competent witnesses against the appellant.
    4. Criminal Daw — Instructions as to Accomplices. — 'The court should have instructed the jury that appellant could not be convicted by the testimony of Keefe and See, since both of them were jointly indicted with him.
    LINDSAY & BOTTS por the appellant.
    1. The court erred in overruling the appellant’s motion to set aside the indictment herein because section 120 of the Criminal Code was not complied with, in that the name of John Loneclser, a witness who was examined by the grand jury which found and returned the indictment herein, was not written at the foot of or on the indictment herein. Criminal Code, sec. 120; Sutton v. Com., 17 Ky. Law Rep., 186.
    2. The court erred in overruling the demurrer of the appellant to •the indictment herein for the following reasons, viz.;
    (a) The indictment charges that this1 appellant with others, Wm. Keefe and George 'See did in Owen County “feloniously ■confederate, conspire and agree together to take, steal and carry away from the possession of Noah May, the owner,' one bay horse albout four years old, of tbe value of $50.00,” but fails to .charge that which was by the parties charged to ¡be done was done in the county or circuit in which the indictment charges the conspiracy, or confederation, or agreement was done, or had, or made; that is to say, that the indictment while alleging the county and circuit in which the conspiracy was made does not allege the county or circuit in which any acts, were done in pursuance to the conspiracy, confederation or agreement.
    (>b) The indictment does not lay the venue of the offense charged in the indictment.
    (c) In view of the instruction given by tbe court to the jury in and upon the trial of the appellant the indictment is fatally defective in that it does not by the most remote inference attempt even to- join with the offense as prescribed or denounced by section 119'5, Kentucky Statutes, the offense denounced or prescribed iby -section 1199 of the Kentucky Statutes. Criminal Code, sec. 124; Ky.-Stats., secs. 1195, 1199.
    3. The court erred in overruling the motion of appellant for a continuance of this case on account of the absence of the witnesses Jam-es Renfrow, Wm. Hedger and Wm. H'earne, especially so when the exceptions to the Commonwealth’s Attorney’s remarks in regard to the affidavit to the jury as shown by the bill of exceptions are considered.
    
      4. The court erred in overruling appellant’s motion for a peremptory 'instruction.
    5. The court erred in permitting the witnesses Wm. Keefe and George See, or either of ¡them, to testify against this appellant, each .and both being charged and jointly indicted wi-th this appellant. Crim. Code, secs. 223, 23.2, 234; Ki-dwell v. Com., 97 Ky., i5-3'8; Thompson v. Com., 16 Ky. Law Rep., 168.
    6. The court not only erred in permitting witnesses Wm. Keefe and George See to testify, but did commit a greater error by saying to them and each of them in the presence and hearing of the jury -that they and each of them need not answer any question which would criminate them or either of them.
    7. The court erred in permitting the witnesses Wm. Keefe and George See to answer, .and the Commonwealth, by her attorney, to propound to them and each of them the questions- and -answers as shown by -the bill of exceptions.
    8. The instructions Nos. 1, 2 and 3 given to the jury as the whole law of the -case are not in fact the whole law of the -case^ but they contain very little of the law which should govern this case and .are not only misleading, but are in the very teeth of the law. Ky. Stats., sees. 1195, 119-9.
    9. The statements of the attorney for the -Commonwealth made to the jury in his closing argument were without foundation in fact, supported by no proof, were very hurtful to this appellant and did much to- prevent -a faj,r and impartial trial.
    10. The newly discovered evidence .shown by the affidavit of Noah May, the owner of the horse which was by the indictment alleged to have been stolen is .of itself sufficient to authorize a reversal of this case. Ma-ssie v. Com., 16 Ky. Law Rep., 790.
    11. The verdict and judgment both and each are no-t only not supported by, but are palpably against the evidence.
    W. S. TAYLOR, ATTORNEY-GENERAL, and M. H. THATCHER ROE APPELLEE.
    Counsel discussed seriatim the propositions of law urged for reversal and cited to the tenth point. Crim. Code, sec. 281.
   JUDGE GUPPY

DELIVERED THE OPINION OE THE COURT.

This appeal is prosecuted from a judgment of the Owen Circuit rendered upon a verdict against the appellant upon an indictment charging him and others with the offense of horse-stealing. Numerous grounds were filed in support of the motion for a new trial, and the same having been overruled, appellant asks a reversal on account of various errors of the trial court.

We deem it unnecessary to notice in detail the several reasons assigned for reversal.

Appellant complains of Instruction No. 1 given by the trial court. The instruction is not as clear as should have been. It is open to the construction that it authorized the jury to convict if appellant received the horse knowing it to have been stolen.

Appellant was not accused of this offense, and the jury was not authorized to find him guilty of the offense charged unless he stole the horse either by himself or in company with others, and the instruction should have so told the jury.

Appellant had moved for a continuance on account of the absence of several witnesses, which motion was overruled; but his affidavit was allowed to be read as the deposition of the witnesses.

It appears that during the argument of the Commonwealth’s Attorney, in closing the case to the jury, the following occurred: He said to the jury: “When a defendant was brought to trial for horse-stealing they always had an affidavit as to what two or three mythical witnesses would state that nobody knew, [the defendant objected, and the Commonwealth’s Attorney then added,] although in this case James Renfrow and William Hedges are actually persons.” To all of which defendant at the time excepted and still excepts.

The Commonwealth’s Attorney, in the 'same argument, stated to the jury as follows: “I could if I had thought it necessary prove by fifteen or twenty as good men as live in New Liberty precinct that Wm. Keefe and George See were in New Liberty until eleven o’clock that Saturday night, and could prove a perfect alibi for Wm. Keefe and Geo. See.”

“The defendant objected, and the court said to the jury that you are to consider only the proof before you, to all of which the defendant at the time objected and excepted and. still excepts.”

The Commonwealth’s Attorney, in the same argument, stated as follows: . “That when J. L. Piner testified at the examining trial this defendant found out that his story to S. D. Duvall, the sheriff, would not wórk, he changed it.”

“The defendant objected, and the court said: ‘You will consider only the proof before you.’ To all of which the defendant at the time objected and excepted' and still excepts.”

The Commonwealth’s Attorney stated to the jury in the same argument as follows: “I have here somewhere the minutes of the- examining court, and that the said minutes will show that J. L. Piner testified at the examining court to all that he testified to in this trial;” when the fact was, and is, that J. L. Piner only testified before the Grand Jury. The Commonwealth said: “Perhaps that is so, but I saw it somewhere in the record.”

“The defendant objected, and the court said to the jury: ‘You will consider the proof before you.’ ”

Under the evidence in' this case and the circumstances surrounding- the trial, the remarks and statements of the attorney for the Commonwealth were almost certain to be very prejudicial to the appellant and ought not to have been made. The ruling of the court in respect thereto could not prevent the injury to the defendant naturally resulting from the statements complained of.

It is earnestly insisted for appellant that Keefe and See, who were jointly indicted with appellant, and to whom a separate trial had been awarded, were not competent witnesses against appellant. It is true that in Edgerton v. Commonwealth, 7 Bush, 143, this court held that a party jointly indicted with another could net be allowed to testify for the Commonwealth, but that decision was placed upon the ground that such person could not testify for the defendant. But that decision was rendered before the enactment of the law allowing the defendants in criminal cases to testify in their own behalf and in behalf of each other. The law now permits defendants in all cases to testify in behalf of themselves and for each other. It seems clear now that such defendants may testify for the Commonwealth if they are willing to do so. The testimony of Keefe and See was competent so far as it conduced to .show the guilt of the appellant, but no further.

The court, however, should have instructed the jury that appellant could not be convicted alone upon the testimony of Keefe and See, both of them being charged with the same crime, and in law at that time should have been treated as accomplices.

For the reason indicated the judgment is reversed and cause remanded with directions to award appellant a new trial, and for proceedings consistent herewith.  