
    Day v. Commonwealth.
    (Decided March 24, 1925.)
    Appeal from Leslie Circuit Court.
    L. D. LEWIS, JOHN L. DIXON and CLEON K. CALVERT for appellant.
    FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.
   Opinion of . the Court by '

Commissioner Sandidge

Reversing.

This is the second appeal of this case. The former opinion is reported in 197 Ky. 730. By reference to the former appeal it appears that when the case was then presented to this court the judgment was reversed upon the ground that the verdict of the jury was flagrantly against the evidence. When the case was retried no additional evidence was produced for the Commonwealth tending to establish that appellant is guilty of the crime charged in the indictment or that for which he was convicted. There is no material difference between the facts proved for the Commonwealth upon the former trial and those proved upon this trial. If there be any material difference between the evidence produced upon the two trials it is that upon the second trial appellant introduced additional evidence establishing the motive and desire upon the part of the deceased to take his life or to do him bodily harm and his threats to do so. The jury upon the second trial fixed the punishment of appellant at confinement in the penitentiary for three years. The former opinion recites the facts of the case. It is the law of the case. The Commonwealth having produced no additional material evidence, the trial court is hound by the former opinion and upon appellant’s motion for a new trial should have set aside the verdict and judgment as being flagrantly against the evidence.

Judgment reversed.  