
    Sams v. Commonwealth.
    October 3, 1947.
    Ray Lewis, Judge.
    John D. White for appellant.
    Eldon S. Dummit, Attorney General, and Paris Swinford, Assistant Attorney General, for appellee.
   Opinion op the Court by

Stanley, Commissioner

Reversing.

The appellant, Hardin Sams, was indicted with Hanley Howard and three others for the murder of Woodrow Jarvis, in Clay County. The Commonwealth procured a change of venue to Laurel County. Howard was convicted, but the judgment was reversed because we deemed the circumstantial evidence upon which it was principally based to be insufficient. Howard v. Commonwealth, 305 Ky. 257, 203 S. W. 2d 27. On a separate trial Sams was convicted of voluntary manslaughter and sentenced to 21 years ’ imprisonment. He appeals.

The evidence is substantially the same, with the addition that a police officer testified that when he arrested Sams he responded “He wasn’t shot,” or “He wasn’t shot, was he?” Since the condition of Jarvis’ body was snch that it did not reveal that he had been shot, but rather had been beaten to death, this exclamation by the accused might be regarded as tending to show his guilty knowledge. But like the personal statement of Howard concerning Jarvis, as proven in his case, we do not think this was of sufficient probative value to connect the appellant, Sams, with the homicide. Therefore, on the authority of the Howard Case, we reverse this judgment.

We observe that the same errors in the admission of incompetent evidence and in the instructions which appeared in the Howard record were committed on the trial of this case. They should be avoided if another trial is had.

The judgment is reversed.  