
    H. H. Harman and Wilson Harman v. Commonwealth.
    (Decided July 1, 1924.
    Appeal from Warren Circuit Court.
    I. Assault and Battery — Evidence Held to Sustain Finding of Prearranged Plan Between Husband and Brother-in-Law to Assault, and Case Properly Submitted to' Jury. — Evidence held to justify finding that assault by brother-in-law of prosecuting witness was result of prearrangeed plan between her husband and his brother and that husband was present, aiding, assisting, encouraging, and inducing assault, and case was properly submitted to jury.
    
      2. Criminal Law — Decisions of Circuit Court on Motions for New Trial, Subject to Exception and Review. — Under Criminal Code of Practice, section 281, as amended in 1910, decisions of circuit court on motions for new trial are subject to exception and maybe reviewed.
    3. Infants — Circuit Court Without Jurisdiction of Prosecution of One Committing Crime Before Reaching Seventeen Years of Age.— Where defendant was under 17 years of age at time of offense, circuit court was without jurisdiction of prosecution though he was over 17 years old at time of trial, unless he had been transferred to circuit court by order of county court, but county court may still make this order after reversal of conviction on proper notice to parties.
    THOMAS, THOMAS & LOGAN for appellants.
    PRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.
   Opinion op the Court by

Commissioner Hobson—

Reversing.

Appellants, H. H. Harman and Wilson Harman, were found guilty of an assault on Cartie Harman, and the punishment of the former fixed at a fine of $1,000.00 and one year in jail, and of the latter at a fine of $750.00.

At the time of the alleged assault H. H. Harman and Cartie Harman, the prosecuting witness, had been married for about two years. He was about twenty-two years of age, while she was a few months younger. Wilson Harman is a younger brother of H. H. Harman and was under seventeen years of age when the alleged offense was committed. H. H. Harman and wife made their home with her parents in the city of Bowling Green, but made frequent visits to the home of his parents in the country. During the latter part of February, 1923, they were at H. H. Harman’s father’s home for the purpose of attending his younger brother, who was sick. According to Cartie Harman, who was deaf and dumb to such an extent that it was necessary for her to testify through her father as interpreter, Wilson Harman, on the pretext of showing her a trick with some matches, enticed her out into the yard, then pulled her into the smokehouse and attempted to assault her. While Wilson Harman was holding her, her husband came suddenly down the ladder at the back end of the smokehouse and struck a match. Her husband put his finger in her face and said, “You are as mean as the devil.” He then made her go into the house where they had some further discussion.

H. H. Harman claims that an evening or two before he had discovered his wife in a compromising position with his brother and had remonstrated with her about it. On the evening in question he left for the purpose of going to see an uncle, but it began to rain and he stopped at another uncle’s. Thereupon he returned to his father’s home. On his arrival he saw his wife and Wilson together, and stepped into the smokehouse to watch developments, not thinking they would come in there. When they came in, he stepped upon the ladder, and afterwards came down and lit a match when the parties took a compromising position. According to Wilson Harman, Cartie Harman had made improper overtures to him before, but he had refused her importunities because she was his brother’s wife. He and she were in a compromising position when his brother'discovered them on the evening before the alleged assault. His brother cautioned him not to bother his wife, but did nothing further. On the evening in question he received a note from Cartie Harman and met her at her suggestion. He and she voluntarily went into the smokehouse, where she had prepared things for them. It was then that they were interrupted by his brother, H. H. Harman. He exhibited two notes which he claimed were written by Car-tie Harman.

In rebuttal Cartie Harman denied writing the notes, and denied that she had been caught before in a compromising position with Wilson Harman. When on the stand she wrote something for the jury, which writing, together with the alleged notes, were placed before them.

It is first insisted that appellant, H. H. Harman, was entitled to a peremptory instruction on the ground that the evidence failed to show that he was a party to a forcible assault. In the indictment Wilson Harman was charged as principal, and H. II. Harman with having-aided, abetted, counseled and advised the assault.' The evidence presents a peculiar state of case. Though claiming to have caught his wife and brother in a com-pi-omising position a day or two before the alleged assault, he did nothing- more than to caution his brother not to bother his wife, and he and his brother remained on friendly terms not only after that occurrence, but after the assault in question. On the evening of the assault, H. II. Harman let it be known that he was going away. Instead of remaining- away, he returned to his father’s home and mounted the ladder in the smokehouse just in time to be present and witness tbe occurrence which took place between his wife and bis brother. If, as tbe evidence tended to show, tbe assault was forcible, then tbe situation presented was tbat of a husband upbraiding bis assaulted wife, and showing no resentment against bis brother who committed the assault. These circumstances justify tbe deduction tbat tbe assault was tbe result of a prearranged plan between H. H. Harman and bis brother, and we conclude tbat it was for tbe jury to say whether H. H. Harman was present aiding, assisting, encouraging and inducing tbe assault.

While there is sufficient evidence to take tbe case to tbe jury as to H. H. Harman, and it was properly submitted to them by tbe court, yet under section 281 of tbe Criminal Code as amended in 1910, tbe decisions of tbe circuit court on motions for a new trial are subject to exception and may be reviewed in this court. In view of tbe fact tbat tbe evidence to establish H. H.. Harman’s guilt is wholly circumstantial and not very satisfactory, also tbat important incompetent testimony was admitted by tbe court and though subsequently withdrawn may have bad its effect with tbe jury in view of tbe closing argument of tbe Commonwealth attorney, tbe court has reached tbe conclusion tbat a new trial should be granted as to him.

As to'Wilson Harman a different question is presented. He was under seventeen years of age at tbe time of tbe offense and though be was over seventen years old at tbe time of the trial tbe circuit court was without jurisdiction unless be bad been transferred to tbe circuit court by order of tbe county court,' and this does not appear from tbe record. Waters v. Com., 171 Ky. 457, Compton v. Com., 194 Ky. 429, Clark v. Com., 201 Ky. 261. Tbe county court may yet make this order if it sees proper to do so, on proper notice to tbe parties.

Judgment reversed and cause remanded for a new trial and further proceedings consistent herewith.  