
    Felix and McKinley Sizemore v. Commonwealth.
    (Decided June 28, 1922.)
    Appeal from Bell Circuit Court.
    1. Criminal Law — Appeal and Error. — Under an indictment 'charging them jointly and severally with the crime of murder, the appelIants were jointly tried and .convicted in the court T>elow oi voluntary manslaughter, .with -punishment to each of twenty-one years’ . confinement -in the penitentiary. But as by the action of the trial court each of -the several instructions given the jury was so worded as that they were required by them either to convict or acquit both -appellants, whereas, under correct instructions, they anight have found the conviction or acquittal of only one of them authorized by the evidence, such action of the trial court -constitutes prejudicial error compelling the reversal of the judgment as to each of the appellants.
    2. Criminal Law — Instructions.—On another trial oif the case the -trial court will add, in the proper -connection, to such of the inductions, as may be found necessary, the -following words, or such words as will convey their meaning: “The jury may find either of the defendants guilty and the other not guilty, -or they -may find both of -them guilty, or both -of them not guilty.”
    J. G. "ROLLINS for appellants.
    CHAS. I. DAWSON, Attorney General, and THOS. B. McGRBGOR, Assistant Attorney General, for appellee
   Opinion op the Court by.

Judge Settle

Reversing.

The appellants were jointly indicted for the murder of Harvey Smith. They had a joint trial under the indictment resulting iim -a verdict finding each- of them guilty of voluntary manslaughter and fixing the punishment of each at confinement in the penitentiary twenty-one years. They were refused a new trial and have appealed. It. would serve no good purpose- to set forth or discuss in the opinion the evidence heard on the trial.' As the case must.be retried, -it is the safer course to withhold general comment upon its- force and! -effect. Nevertheless it is proper to say that none of it seems to have been fatally incompetent, nor is there any ruling of the'trial court in the matter of excluding offered evidence, -seriously complained of b-y the appellants.

The record, however, 'discloses! error committed by the trial court in instructing the jury, which will compel the reversal of the judgment. As worded each of the several instructions given required the jury to convict or acquit both defendants, though the conviction or acquittal -of only -one of them may have been authorized by the evidence, -and under correct instructions the jury might have so found. Such error was ¡necessarily so prejudicial to the substantial rights of the appellants as to have prevented a fair and impartial trial. On another trial -the court below should add to such of the in-s-tructions as may he found necessary, in the proper connection, some such qualifying words as will convey the meaning of the following: ‘ The jury may find either of the defendants guilty and the- other1 not guilty, or they .may find both of them guilty or both of them not guilty.” Martin v. Comwth., 193 Ky. 835.

Other errors assigned by the appellants for a reversal it is deemed unnecessary to consider, as they will not ocenr on another trial. For the reasons indicated the judgment is reversed, as to both appellants, and cause remanded for a new trial and other proceeding's not inoonsisteinit with the opinion.  