
    Clem v. Commonwealth.
    (Decided February 26, 1926.)
    Appeal from Harlan Circuit Court.
    1. Criminal Law.—Judgment must be reversed, where trial court failed to give instructions directed by appellate court in reversing former judgment.
    2. Criminal Law—Instruction Called for by' Evidence of Deceased’s Commission of Felony May be Given, Though Not Directed in Opinion on Former Appeal (Ky. Stats., Section 1148a-7).—That giving of instruction called! by evidence of deceased’s commission of felony under Ky. .Stats., section 1148a-7, was not directed by appellate court on reversing former judgment of conviction, does' not preclude giving thereof on retrial, where former opinion did not say that no other instructions than those directed therein should he given.
    J. S. FORESTER, D. Y. LYTTLE, W. A. BROCK and H. M. BROCK for appellant.
    FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.
   Opinion of the Court by

Drury, Commissioner

Reversing.

The defendant, charged with murder, was convicted of manslaughter, and his punishment fixed at confinement in the penitentiary for 21 years. The circumstances under which this homicide was committed are fully set out in an opinion delivered upon a former appeal. See 198 Ky. 486, 248 S. W. 1036. In reversing the former judgment, this court directed that upon the second trial, certain instructions be given. Through some misunderstanding, the trial court this time gave practically the same instructions that were given on the first trial, and did not give the instructions this court directed. For this reason this judgment must be reversed. If, upon another trial, there is evidence as now appears in the record, indicating that the deceased had committed a felony under section 1148a-7, Kentucky Statutes, the court will, in addition to the instructions indicated in the former opinion, instruct the jury as indicated in Fitzpatrick v. Com., 210 Ky. 385, 275 S. W. 819, modifying the verbiage of the instruction to fit the facts shown by the evidence. The question of giving or not giving such instruction was not presented to this court on the former appeal, and the defendant now insists that he should have had such an instruction upon his second trial, and is complaining here because it was not given. The Commonwealth insists that the former opinion is the law of the case, and as su'ch an instruction was not directed to be given by the former opinion, it should not have been given. While the former opinion did not direct the giving of such an instruction, it does not say that such an instruction should not be given, nor does it say that the instructions mentioned in the former opinion are the only ones that should be given. No court has adhered more closely to the law of the case rule than this one, yet we have never gone to the extent of saying that in a case ivhere the evidence on the second trial called for an instruction additional to the instructions approved or directed by the former opinion, such additional instructions shall not be given; especially is that true when the former opinion does not say that no other instructions shall be given.

One Murty 0 ’Brian was charged with murder. He was put upon trial, the jury selected, sworn and the hearing of the evidence begun. Spilman, one of the jurors, announced that he was a member of the grand jury that had returned the indictment against defendant, and thereupon the court, on its own motion and over the objection of the accused, discharged the juror and impanneled another in his stead. 0 ’Brian was convicted. He appealed and the judgment was reversed. See 6th Bush-563. As one of the- reasons for reversal, O’Brian had insisted very strongly, upon a plea of former jeopardy, but the case was reversed on other grounds. Upon the return of the case, 0 ’Brian entered a formal plea of former jeopardy. He was again convicted and appealed. This court held that his plea of former jeopardy was not presented on the first appeal, and reversed the-case, but in doing so said:

“Conceding, however, that this question was properly before the court upon the former' appeal, still no former adjudication gives to the state the right to take the life of the accused when he is entitled to an acquittal. The Commonwealth is not in pursuit of victims, but desires to inflict punishment only in a legal and constitutional way upon the guilty.” *

See O’Brian v. Com., 9 Bush 333.

We have already said that this case must be reversed for reasons already stated, and as it must be retried, the defendant should have a fair trial, and while we would not have reversed this judgment for the failure to give this instruction in this case, still, it should be given upon the next trial. In Andonique v. Carmen, 162 Ky. 156, the court, deciding this precise question, said:

“Appellant does not complain that this was ah erroneous statement of the law, but insists that the former opinion is the law of the case, and that the giving of the instruction quoted was error, because it was not given on the former trial, and there was no direction for it in the opinion. . . .
‘ ‘ The mere circumstance that an instruction, although a proper one, was not given on the first trial, and, therefore, not considered and approved by this court on appeal, does not. of itself preclude the giving of it on the second trial.”

The judgment is reversed and the cause remanded for a new trial.  