
    Case 48 — Indictment of James Howard for the Murder of William Goebel —
    March 28.
    Howard v. Commonwealth.
    APPEAL FROM FRANKLIN CIRCUIT COURT.
    Defendant Convicted of Murdf,r and Appeals.
    Reversed.
    Indictment — Aiders and Abettors — Failure to Disclose Actual Perpetrator — Accomplices—Instruction as to Corroboration— Declarations of Co-Defendants as Evidence — Cross Examination of Accused as to Other Offenses — Misconduct of Counsel in Argument — Reversible Errors.
    1. Under Criminal Code Practice, section 126, authorizing an averment in the alternative as to the different modes and means by which the offense charged may have been committed, an indictment for murder, which charges that one of the several defendants named therein, or some person acting with them, whose name is unknown to the grand jury, fired the shot, and that the other defendants were present, aiding and abetting the shooting, but that which one fired the shot and which aided and abetted the shooting is unknown to the grand jury, is good.
    2. Under such an indictment it was proper to instruct the jury that they might convict if they believed the defendant on trial fired the shot, or if they believed that one of the other defendants fired the shot, and that he was acting with them, or any one of them, and did aid and abet such shooting.
    3. There can be no conviction upon the testimony of accomplices alone, however many there may be, and therefore, where two accomplices testified, an instruction telling the jury that they could not convict upon the uncorroborated testimony of “an accomplice” ■ was erroneous, in that it failed to present the idea that one accomplice can not corroborate another for the purpose of conviction.
    4. On the trial of one of several defendants jointly indicted, the declarations of a co-defendant, made in the absence of the defendant on trial, in furtherance of the common purpose, is admissible when a prima facie case of conspiracy has been made out, though there be in the indictment no express averment of a conspiracy; but a defendant’s guilt as principal or accessory can be finally established only by evidence of his own acts.
    
      5. The testimony of a witness for defendant on cross-examination as to an altercation had by him with one of the witnesses for the Commonwealth on a train, was admissible to show the feelings of the witness.
    6. Upon a trial for murder, defendant, testifying for himself, was privileged from answering questions asked him on cross-examination as to another murder with which he was charged.
    7. It was error to .permit a witness to testify that he heard T. say to defendant, “I want to compliment you on what you did in Frankfort,” that being the place where the killing occurred, and that defendant “just nodded .and passed on,” there being no claim that T. had any connection with the homicide.
    8. Where the regular Commonwealth’s attorney took no part in the prosecution because of his sickness, it was prejudicial error to permit ,the Commonwealth’s attorney pro tern,, to say to the jury in his closing argument that he was commissioned by the regular Commonwealth’s attorney to say to them “that he thinks the defendant guilty, and hopes the jury will hang him higher than Haman.”
    9. Under Criminal Code Practice, section 281, the decision of the trial court upon .the motion for new trial is not subject to exception.
    CHIEF JUSTICE PAYNTER and JUDGES HOBSON and WHITE, DISSENTING IN PART.
    W. C. OWENS, J. B. FINNELL and CARLO LITTLE, por appellant.
    ROBT. J. BRECKINRIDGE, B. G. WILLIAMS and T. C. CAMPBELL, POR THE COMMONWEALTH.
    (N.o briefs in the record.)
   Opinion op the court by

JUDGE BURNAM

Reversing,

followed by dissenting opinion op JUDGES HOBSON and WHITE, and the dissenting opinion op CHIEF JUSTICE PAYNTER.

The appellant, James Howard, was jointly indicted with Henry Youtsey, Berry Howard, Harlan Whitaker, and Richard Combs for the murder of William Goebel, and was, upon separate trial, found guilty of murder, and judgment was rendered in pursuance of the verdict. The in-' dictment charges, viz.: “That the said Henry Youtsey, James Howard, Berry Howard, Harlan. Whitaker, Richard Combs, and others then and there acting with them, but who are .to this grand jury unknown, in the county of Franklin, on the 30th day of January, 1900, and before the finding of this indictment, unlawfully, willfully, feloniously, of their malice aforethought and with intent to kill, did kill and murder William Goebel, by shooting and* wounding him with a gun or pistol loaded with powder or other explosives, and lead and steel ball and other hard substances, and from which said shooting and wounding the said Goebel died on the 3d day of February, 1900; and the indictment does further charge that one of the above-named defendants, or another person then -and there acting with them, but whose name is to this grand jury unknown, did so as aforesaid then and there kill and murder said Goebel, and the other of said defendants did then and there counsel, advise, assist, aid and abet same; but which so actually fired the shot, and which so actually counseled, aided, advised, and abetted therein, is to this grand jury unknown.”

Appellant complains of the indictment because it charges him with being the principal, and at the same time of being the aider and abettor of the four other persons named therein, and of- another person then and there acting with them, but who is to the grand jury unknown, in the commission of a crime which was the result of a single act,the firing of a single shot;and to support this contention we are referred, to the cases of Com. v. Patrick, 80 Ky., 605; 4 R., 660; Mulligan v. Com., 84 Ky., 230; 8 R., 211; 1 S. W., 417. In the Patrick case the offense charged in the indictment was that Amos and Wiley Patrick shot at and wounded Joseph Dyer with a pistol, and that each of them was-present, and aided and encouraged the other to commit the offense. In that case the demurrer to the indictment was sustained upon the ground that the punishment imposed by the statute was upon the person alone who actually committed the act constituting the offense, and that there was no provision in the statute for the punishment of an aider and abettor; and that, as it was a purely statutory offense, an indictment did not lie for aiding and abetting therein, the aiding and abetting being a minor offense, punishable only as a misdemeanor. In the Mulligan case there was no question as to the sufficiency of the indictment, but the question was one of variance. The indictment was against' Mulligan alone, and charged him as the actual perpetrator of the crime, and the court held that proof that he was only an aider and abettor constituted a variance. When the court isaid that the indictment must disclose the name of the principal, it did not mean that there could be no indictment if the name of the actual perpetrator of the crime was unknown. The case adjudged was that proof that the defendant aided and abetted the commission of the felony will not support an indictment charging him as the actual perpetrator of the crime, unless the actual perpetrator is joined with him. In this case the indictment charges that one of the defendants ñredí the shot, and that the others were present, aiding and abetting, and that the grand jury does not know which one fired the shot. This is in effect an averment in the alternative as to the different modes and the different means by which the offense may have been committed as authorized by section 126 of the Criminal Code. That the actual perpetrator of a criminal act and one present aiding and abetting him may be jointly indicted in the alternative, one as the principal and the other • as the aider and abettor, and that either, may be convicted as principal or as aider and abettor, has been frequently held by this court. See Benge v. Com., 92 Ky., 1 (17 S. W., 146); 13 R., 308; Travis v. Com., 96 Ky., 77; 16 R., 253; (27 S. W., 863); Howard v. Com., 96 Ky., 19; 16 R., 201 (27 S. W., 854); Jackson v. Com., 100 Ky., 239; 18 R., 795 (38 S. W., 422). To say that one who is known to have been present aiding and abetting a murder can not be punished because the person who fired the shot is' not known would, in large degree, destroy the efficacy of the law for the punishment of crime.' Bishop in his New Criminal Law (section 495,) says, viz.: “A grand jury should not indict a man unless reasonably informed of his guilt; but the jurors may know it sufficiently while ignorant of an identifying circumstance such as ought ordinarily to appear in the allegation. Then they may state the main facts, adding that, this circumstance is unknown to them, and the indictment will be good. Thus, if they are ignorant of identifying names, the allegation may be in this form; that is, the indictment, instead of saying what they are, may state that they are to them unknown.” .We are, therefore, of the opinion that the indictment comes up to the requirements of section 124 of the Criminal Code.

The nex-f ground of complaint is that the instructions given by the court to the jury do not fairly and correctly state the law of the case. Only three instructions were given, and only two of them are complained of upon this appeal. The basis of appellant’s objections to the first instruction are the same as those which are urged- against the validity of the indictment, itself. It, in effect, tells the jury that if they believe from the evidence, beyond a reasonable doubt, that the defendant willfully and maliciously shot, the deceased with the intent to kill him, and from which shooting he afterwards died; or if they believe from the evidence, beyond a reasonable doubt, that either of the other defendants named in the indictment willfully and maliciously shot the deceased, and from which shooting he soon thereafter died; and they believe from the evidence, beyond a reasonable doubt, that this defendant was then and there acting with them, or any one of them, and did then and there counsel, aid, and abet such shooting, — they should find him guilty. This instruction has been frequently approved by this court in cases similar to that on trial, and is a fair and clear statement of the law. The next instruction complained of is as follows: “The defendant can not be convicted upon the testimony of an accomplice, unless such testimony is corroborated by other evidence tending to connect the defendant with the offense; and such corroboration is not sufficient if .it merely proves the commission of the offense, and the circumstances thereof.” This instruction is substantially in the language of section 211 of the Criminal Code, and in cases where only one accomplice was introduced by the Commonwealth would be a sufficient compliance with the Code; but in this case the Commonwealth introduced as witnesses two persons who had been previously indicted as accessories before the fact to the murder of the deceased, and it complained that the instruction is erroneous and misleading because it fails to tell the jury that the testimony of one accomplice or accessory before the fact can not be used to corroborate the testimony of the other for the purpose of convicting the defendant. The rule as to the corroboration of accomplices is stated in Rose. Or. Ev. 122, as follows: “There should be some fact deposed to independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it.” Russ. Crimes, 962, says that, viz.: “It is not sufficient to corroborate an accomplice as to the facts of the case in general, but that he must be corroborated ,as to some material fact or facts which go to prove that the person was connected with the crime.” The degree of evidence which shall be deemed sufficient to corroborate the testimony of an accomplice is a matter for the jury; but there must be some fact deposed to independently altogether of the evidence of an accomplice, whether one or a dozen is introduced by the Commonwealth, which, taken by itself, fairly tends to' connect the defendant with the commission of the crime, so that this conviction will not rest entirely upon the evidence of accomplices (see People v. Platt, 4 N. Y. Cr. R., 53; 3 Rice, Ev. p. 511, and authorities there cited); and this instruction is erroneous because it fails to present this idea.

We will next consider the claim of appellant that numerous errors to his prejudice were committed in the admission of incompetent testimony. As most of the objections to the testimony are based upon the same general rule of evidence, with a view to brevity we will consider a number of them together. First, it is claimed that, as there was no charge of a conspiracy in the indictment, it was error to allow numerous witnesses to prove the condition of the Statehouse yard on the morning of the 30th of January, the day on which deceased was shot, ás compared with the five or six preceding days, with reference to the number of people therein; and also that the witness Culton was permitted to testify as to conversations had with Youtsey on the 12th and 13th of January, in which Youtsey detailed a plan to him for shooting the deceased from the office of the Secretary of State, and the manner in which it could be done, and how the perpetrator could escape through the basement of the building; and also as to conversations in which Youtsey talked to him about smokeless powder, etc.; and that the witness Golden was permitted to testify that John Powers gave to Youtsey a key to the office of the Secretary of State on the morning of the 30th day of January; and that the witness Ricketts was permitted to testify as to conversations had with Youtsey as to the killing of the deceased several days previous to the 30th of January, and also as to his conduct on the morning of the 30th in conducting men from the agricultural to the executive building, and stationing them at the foot of the stair steps, and as to directions given them by him; and to the testimony of McDonald to the effect that he had seen Berry Howard and Culton in conversation near the capítol building just prior to the shooting; and the testimony of the witness Day as to talks with Youtsey. Of course, the testimony of neither of these witnesses has any bearing upon the guilt or innocence of the defendant, Howard, unless the Commonwealth, by other testimony, establishes a guilty connection between the defendant and Youtsey, and shows to the satisfaction of the jury either that he fired the fatal shot, or was present and aided and encouraged Youtsey or another to do so. The testimony in this case.is altogether circumstantial and, as was said in the case of Obrien v. Com., 89 Ky., 362; 11 R., 534 (12 S. W., 471); ‘Necessarily, where the proof of a crime can only be shown by proof of circumstances, the evidence should be allowed to take a wide range; otherwise, the guilty would often go unpunished. It is true that there must be some connection between the fact to be proven and the circumstances offered in support of it, yet any fact which is necessary to explain another, or which offers a particular opportunity for the transaction which is in issue, or shows facilities or motives for the commission of the crime, may be proA’en. ’’And on the trial of one of several defendants jointly indicted for an offense the declaration of a co-defendant, made in the absence of the defendant on trial, in furtherance of the common purpose, is admissible when a prima facie case of conspiracy has been made out. To authorize the admission of such evidence, an express averment in the indictment of the fact of a conspiracy is not necessary. See Goins v. State, 46 Ohio. St., 457, 21 N. E. 476. “But, to make the declaration competent, it must have been in furtherance of the prosecution of the common object, or constituted a part of the res gestae of some act done for that purpose.” See Tayl. Ev. p. 542, section 530.

Mr. Archbold, in his work on Criminal Practice and Pleading (volume 2, p. 1059), gives a very concise, yet comprehensive, statement of the law. He says, viz.: “Wherever the writings or words of any of the parties charged with or implicated in a conspiracy can be considered in the nature of an act done in the furtherance of the common design, they are admissible in evidence against not only the party himself, but as proof of an act from which, inter <Ma, the jurjr may infer the conspiracy itself. But wherever the writings or words of such a party, not being in the nature of an act done in furtherance of the common design, merely tends to implicate others, and not the accused himself, they ought not to be received in evidence for any purpose.” And this doctrine is approved in Wright, Cr. Consp. p. 217, and in Clawson v. State, 14 Ohio St., 234, and State v. Larkin, 49 N. H., 39. It seems to us that these declarations of Youtsey come within the rule laid down in these authorities, and are competent evidence to go to the jurj But it must not be forgotten that the defendant's guilt as principal or accessory can only be finally established by evidence of his own acts. See Wright, Cr. Consp., 69, 71; Steph. Dig. Cr. Law, article 39. And the testimony of B. P. White on cross-examination as to an altercation had by Mm with one of the witnesses for the Commonwealth on the train was competent to show the feelings of the witness, and the same may be said of the objections to the cross-examination of the witness Parker.

Upon the cross-examination of the defendant by an attorney for the Commonwealth he was asked the following questions, and was forced to answer them, over his objections: “Q. What was the offense charged against you for which these gentlemen wrere defending you? A. I have told you that. Q. Tell us now. A.' It was for the murder —for the killing — of George Baker.- I was charged with the killing of him. Q. Was he not an old man, with his hánds uj), and begging you for God’s sake to spare has life? Further along in the cross-examination the same counsel asked the witness “If he did not from a window in the house of Beverly White, with the curtains drawn, in the town of Manchester, shoot Tom Baker, in the presence of his wife and infant children?” to which the defendant answered that he did not. He was then asked whether he was present when this was done, and where he was, and as to who had been indicted for the killing of Tom Baker. No exceptions were taken to these questions with reference to the killing of Tom Baker, and they would not be considered upon this appeal except for the fact that the court has concluded that the judgment must be reversed on other grounds, and a new trial had. The witness was privileged from answering these questions, not -only because it was an attempt to impeach his testimony by proof of particular acts which had no connection with the offense for which he was being tried, but also because, if he answered in the affirmative, he would have subjected himself to prosecution for other offenses having no connection with that for which he was being tried.

In a long line of decisions this court has uniformly held questions of this character incompetent. . In Sodusky v. McGee, 5 J. J. Marsh. 622, John Chowning, a.witness for the appellee, having sworn to facts which occurred in the encounter between McGee and the appellants, was asked by their counsel “if he was not engaged at the time or shortly before the commencement of the encounter, some distance off, playing cards with a negro fellow.”

In passing upon the competency of this question, Chief Justice- Robertson said: “A witness should not be compelled to prove his own general character, nor should he be required to prove any special fact reflecting upon his character, unless it be pertinent to the issue, independent of its tendency to affect his character. His character could not be assailed by other witnesses- by proof of particular facts, and certainly it would be improper to compel him to prove facts relating to his character which others would not be permitted to prove. But, if the fact itself be pertinent and legitimate, it is at least very questionable on principle, as well as authority, whether a witness,’ as a matter of course, would be excused from answering questions relating to it merely because they mighty in some degree tend to subject him to reproach, not infamy, or might tend to reflect upon his character some degree of disparagement. See Starkie, Ev., 137-139, 1-11. Anciently a witness might be compelled to answer questions which reflected infamy upon him (Peake. 129, 130); but this doctrine has been overruled by modern cases. See State Tr. 748; Starkie, 153; People v. Herrick, 13 Johns., 82. How far the tendency of a question to disparage a witness -without rendering him infamous may entitle him to be excused from answering it has not, so far as we know, been settled by authority.” The cases of Cole v. Wilson, 18 B. Mon., 211, and Pence v. Dozier, 7 Bush, 138 are to this effect. And in discussing the question in Saylor v. Com., 97 Ky., 190, (30 S. W., 390), the court said through Judge Paynter: “It is a rule that a witness is not bound to answer any question which would tend to subject him to punishment, presentment, or infamy. Under the bill of rights he can not be compelled to give evidence against himself, but when he becomes a witness for himself in a criminal prosecution, he waives that right so far as the charge under investigation is concerned. But the fact that he does so waive it does not give the Commonwealth the right to compel him to admit the commission of other offenses which would subject him to punishment, presentment, or infamy; for, if this were done, it would be in utter disregard of the bill of rights, and in many cases deter persons accused of offenses from going on the stand as witnesses for themselves, as a forced confession of another offense might subject to greater punishment than the charge under investigation.” In Leslie v. Com. (Ky.), 42 S. W., 1095, (19 Ky. L. R., 1201), it was held that it was prejudicial to the rights of the accused, who was or. trial for murder to ask him upon cross-examination if he had not been arrested for discharging firearms in a certain town, and for carrying concealed weapons. The court said: “This question should only be admissible to show appellant’s guilt of particular acts, and therefore is within the inhibition of section 597 of the Civil Code.” So, in Lewis v. Com. Ky.), 42 S. W., 1127, (19 Ky. L. R., 1139); the court held that it was error prejudicial to the substantial rights of the defendant to have asked the clerk of the Bourbon Circuit Court if there was not an indictment against a witness who testified for the defendant charging her with being accessory to the murder for which the defendant was being tried. The court, through Judge White, said: “This was error prejudicial to the substantial rights of the defendant, and was an attempt to impeach a witness by showing that she had been indicted as accessory to the crime of the murder of Amelia Lewis.”

Witnesses can not be impeached by proof of particular acts o>r offenses that they might have been guilty of, but the inquiry must be confined to the general character, and not to the particular acts charged against the witness. It is evident that the testimony was introduced for the purpose of impeaching or weakening the testimony of the witness, and, we have no doubt, influenced the jury in considering her testimony.” In Baker v. Com. (Ky.), 50 S. W., 54, (20 Ky. L. R., 1778), appellant was on trial for the murder of W. L. White; Upon cross-examination the Commonwealth was permitted, against the objection of the defendant, to prove by him that he was under indictment for house-burning, and also to ask him whether he had been indicted for anything else. This was held prejudicial error. In the very recent case of Pennington v. Com. (Ky.), 51 S. W., 818, (21 Ky. L. R., 542), in which the defendant was convicted of murder, and sentenced to the penitentiary for life, on the trial appellant was asked as to other indictment against him. The court, in an opinion by Judge Hazelrigg, held that “under section 597 of the Civil Code a witness could not be impeached by evidence of wrongful acts except in the manner pointed out, and that the evidence quoted was incompetent, and, from its nature, prejudicial.”

And in the case of Ashcraft v. Com., 60 S. W., 931, (22 Ky. L. R., 1542), decided at this term of the court, it was unanimously held by this court that it was reversible error to ask the defendant on cross-examination as to other indictments against him than that on which he was being tried. In discussing the question as to when a witness may refuse to answer, Greenl. Ev. (14th Ed.), section 454 says: “On this point there has been a great diversity of opinion, and the law remains still not perfectly settled by authorities. But the conflict of opinion may be somewhat reconciled by a distinction which has been very properly made between the cases where the question is not strictly relevant, but is collateral, and is asked under the latitude of cross-examination. In the former case there seems to be great absurdity in excluding the testimony of a witness merely because it will tend to degrade himself, when others have a direct interest in that testimony, and it is essential to the establishment of their rights of property, liberty, or even life, or to the course of public justice. Upon such a rule, one who has been convicted for an offense, when called as a witness against an accomplice, would be-excused from testifying to any transactions in which he had participated with the accused, and thus the guilty might escape. And accordingly the better opinion seems to be that, where tire transaction to which the witness is interrogated forms any part of the issue to bo tried, the witness will be obliged to give the evidence, however strongly it may reflect on his character.” Id. section 456: “It is, however, generally conceded that, where the answer which the witness may give will not directly and certainly show infamy, but will tend to disgrace him, he may be compelled to answer. When it does not, there seems to be no- good reason why the witness should be privileged from answering a question touching upon his situation, employment, and associates, if they be of his own choice — as, for example, in what family he resides, what is his ordinary occupation, and whether he is intimately acquainted with or conversant with certain persons, and the like; for, however these may tend to disgrace him, his position is of his own selection.” And it is the general rule elsewhere. In the very able and well-considered opinion in the case of People v. Brown, 72 N. Y., 571, the court said: “I am of the opinion that the cross-examination of persons who are witnesses in their own behalf when on trial for criminal offenses should, in general, be limited to matters pertinent to the issue, o,r such as may be proved by other witnesses. I believe such a rule necessary to prevent a conviction for offenses by proof that the accused might have been guilty of others. Such a result can only be avoided practically by an observance of this rule.” The court therefore erred in requiring the defendant to answer the questions.

The Commonwealth was also permitted, over the objection of the defendant, to prove by the witness Weaver that he heard Judge Tinsley say to the defendant: “Jim, I am glad to see you. I want to compliment you on what you did in Frankfort. I learned about you through my son” — and that the defendant did not open his mouth, but just nodded and passed on. There is no claim; that Howard made any response to this remark, nor is there any claim that Judge Tinsley, who is one of the circuit judges of the State, had any connection whatever with the homicide of which the defendant is accused; and, while the testimony is emphatically denied by Judge Tinsley, it was wholly illegal, and incompetent for any purpose, and should have' been excluded.

Another ground of complaint is misconduct of the attorneys for the prosecution ini course of the trial. It is especially complained that the Commonwealth’s attorney pro tempore, in his closing argument to the jury, used these words: “I am commissioned by Robert Franklin to say to the jury that he is in thoror-' 'v’cord and sympathy with the prosecution, and that he thinks the defendant guilty, and hopes the jury will hang him higher than Haman.” It appears that Robert Franklin, the regular Commonwealth’s attorney, did not participate in the prosecution of the accused because of sickness, and that his place was supplied by the appointment of the pro tempore attorney who used the language complained of. Mr. Franklin was not a witness in this case, and, if he had been, he would not have been permitted to have expressed an opinion of the guilt or innocence of the accused; and his opinions on that subject, whatever they may have been, were wholly irrelevant and incompetent; and the facts that he occupied a high official position, that he was prevented by sickness from the discharge of the duties imposed upon him by law in connection with the prosecution, undoubtedly gave to this message, communicated to the jury by his substitute in his closing address, undue weight, and was, under the circumstances, very prejudicial to the rights of the defendant. And it is a well-established rule that it is error sufficient to reverse a judgment for the court to suffer counsel, against the objection of the defendant, to state facts not in the evidence or pertinent to the issue, and the evidence of which would have been ruled out. See 2 Enc. Pl. & Prac. p. 727; Kennedy v. Com., 77 Ky., 360.

One of the grounds relied on in the motion for a new trial made in the court below is that the court erred to-the prejudice of the accused in refusing to sustain his motion to fill up the jury box by persons whose names were drawn from the jury wheel, instead of directing the sheriff to summon a special venire after the original panel of jurors had been exhausted. This motion was supplemented by the affidavits of quite a number of persons, who stated, in substance, that four of the jury who tried the defendant had formed and expressed the opinion that he was guilty before they were accepted on the panel; and that this information was not communicated to the defendant until after the termination of the trial. While all of the statements contained in these affidavits are denied by the accused jurors, and may have no just foundation, yet the fact that so many persons could be found to make affidavits so circumstantial in their detail of facts on this point illustrates the great importance, in a case of this character, of using every precaution to secure discreet and' impartial citizens to act as jurors. Under section 281 of the Criminal Code, the decision of the trial court upon the motion for a new trial is not subject to exceptions, and consequently it will be unnecessary for us to further consider this question.'

'Numerous other errors are complained of, but, as they are not likely to occur again, are not considered in this opinion. But, for error pointed out and discussed, the judgment of the trial court is reversed, and the case remanded for a new trial consistent with this opinion.

Judge Hobson's

opinion.

Judge White and I concur in the opinion of the court in the reversal of the judgment in this case on the ground that the particulars of the shooting of Baker by appellant should not have been admitted in evidence, and that, as the record stands, the statement of the attorney for the-State in his closing speech set out in the opinion was peculiarly prejudicial, xlppellant can not be convicted in this case because he may have committed another crime of like character; and proof that he had done so, or even such an impression, might seriously prejudice him before the jury, who might .consider that such proof showed he was the character of person who would commit such a deed as that charged herein. Appellant is also entitled to be tried by the jury under the law and the evidence, and nothing- could be more damaging to him than for the jury to get the impression that public sentiment was to the effect that he was guilty, and ought to be hung-. We also concur in the opinion of the court that the evidence as to-the statement of Judge Tinsley to the appellant should not have been admitted, and that the instruction as to the testimony of an accomplice should have used the word “accomplices,” instead of the words “an accomplice.” But, under the facts of the case, we do not see that appellant was seriously prejudiced by either of these two matters. We do not concur in that part of the opinion which undertakes to lay down the proper limits of cross-examination, and see no reason for discarding the settled practice in this State, supported by a number of decisions of this court, to follow the dictum of a New York judge announcing a rule that is not followed in that State, and is contrary to the great weight of modern authority. We therefore dissent from that part of the opinion. The chief justice also concurs with us on this point.

Chief Justice Paynter

(concurring in result).

Two things are as certainly established by the evidence in this case as it is possible to establish anything by human testimony. One is that William G-oebel was assassinated while peaceably passing through the State-house grounds to discharge his duties as a member of the Kentucky Senate; the other that the assassin fired the fatal shot from a window in the private office of Caleb Powers-, the Secretary of State. Under the indictment, and under the well-established rules of practice in this- State, James Howard could have been found guilty of murder if the proof showed that he either fired the fatal shot, or aided .and abetted another in doing so. ■ So the jury was authorized to find him guilty of murder if the evidence warranted it in reaching the conclusion that he was the principal or an aider and abettor. The indictment charges that the appellant, James Howard, Henry Youtsey, and others were guilty of the offense. If the testimony showed that Youtsey fired the shot, and the appellant, Howard, was present, aiding and abetting, he was guilty; if it showed that the appellant, Howard, fired the shot, and Youtsey was present, aiding and abetting, he was guilty. Then any testimony 'which conduces to show either of them to be a principal or an aider and abettor was competent. For the purpose of considering the questions which I will discuss it is necessary to briefly state some of the evidence offered conducing to show the guilt of the parties. In doing so I will briefly call attention to,some of the testimony against Youtsey and the appellant Howard. William Goebel, then a senator, but afterwards declared governor by the Legislature, was shot at about 11:15 a. m. on January 30, 1900. The evidence introduced by the appellant, Howard, conduces' to prove that he left his home (Manchester, Ky.), on the morning of the 28th of January, 1900, and rode to London, Ky., arriving there at about 2 o’clock in the afternoon. He remained there during the night, and the next morning went to Winchester, - Ky., from which place he came to Frankfort, arriving at 10:17 a. m., about one hour before the assassination. The accused claims that he did not go to the State-house square until the afternoon on the day of his arrival; that upon his arrival he went to the Board of Trade Hotel, and remained there a short time, walked toward the State-house grounds, met a stranger by the name of Robinson, and engaged him in conversation, and returned with him to the Board of Trade Hotel, where he was at the time the fatal shot was fired, and where he remained until some time in the afternoon, when he went to the StateJhouse. His defense is an alibi. He claims that he was notified by John G. White, of Winchester, to come to Frankfort with the view of obtaining a pardon for the killing of George Baker, for which offense he stood indicted. Ed Parker lives at London, Ky., and was on his bond in the case wherein he was indicted for the killing of Baker, and also one of his attorneys. He testified that Howard passed his office, while in London, on his trip to Frankfort, but did not stop to see him; and also that J. G. White had written to him before' that time to do certain things to- aid -Howard in procuring a pardon, and that he had not done the things which White requested him to do. He also testified that he did not speak to Howard while in London, or endeavor to have an interview with him. I will add 'here that Howard says he thinks- he talked to Parker in regard to the matter; but if he did not talk to him then, he did, not . advise .either of his attorneys of his purpose to come to Frankfort to get a pardon, or ask their aid in the matter. John Ricketts testified that he was in the agricultural office on the day before the assassination, and was in conversation with Youtsey as to the contest that was then pending before the Legislature for the office of Governor, wherein William Goebel was contestant and W. S. Taylor eontestee, and YAutsey said: “The way to settle it was to put Goebel -out of the way, and that he had $100 of his own money to have it done, and he thought there were ten or eleven others that wanted it done as much as he did; and he thought it could be done from the executive building, and the man who did it escape through the basement.” He also testified that fifteen or twenty minutes before the shooting Youtsey rushed into the agricultural building, and said for some of them to come with him; that he, together with others, went to'the executive building, and Youtsey stationed them at the foot of the stairway on the inside of the building, and told them that something was going to happen, and for them to stand there, that there would be a man come down among them, and for them to scatter off together; that the witness realized something was going to happen, and left the men standing at that place, and left the building.

It also appears that the stairway where the men were stationed was near the door leading into the private office of the Secretary of State from the hallway. It is proven by Lewis Smith, who knew Youtsey well, that immediately after the shooting he (Youtsey) ran down the stairway which leads to the basement from a point near a door in the Secretary of State’s office; that he went on through the basement. It is proved by Ed. Thompson, Jr., that shortly thereafter Youtsey was seen to. enter the executive building from the Lewis street entrance. It is proven by Walter. Day that some days before the assassination Youtsey told him that, if he could get $300, he could settle the contest. W. H. Culton testified that some time before the assassinaiion he saw Youtsey with a box of cartridges in his hand; that he told him he had a scheme by which he thought he could kill- Goebel, and showed him a cartridge, and said he thought it would be the thing to do it with; that he had a key to the Secretary of State’s office; that he could get in whenever he wanted to; that he had examined a window in that office, and that he could be killed from that window, and no one would know anything about it; that he could pull thp blind down a certain distance, fire the shot, and-.get out'1 through the basement; and said that he had smokeless cartridges that fired steel balls, and opened a box and' showed them.

The window blinds in the private office of the Secretary of State were discovered to be down immediately after the shot was fired. Wharton Golden testified that he, John, and Caleb Powers left for Louisville in the morning of the day of the assassination, and that John Powers, a brother of Caleb Powers, had given Youtsey a key to a door in the Secretary of State’s office. Some of the testimony tending to establish the guilt of Howard is as follows: W. H. Culton testified that during the evening of the day of the assassination he met Jim Howard in the agricultural office, and, after greeting him, he said to Howard he was glad to sec? him, and asked him when he came, and he laughed, and said, “I have been here a week,” and Culton said, “I have never seen you.” He again laughed, and said, “I know that.” Afterwards they wore in the Secretary of State’s office together, and Culton says while they were standing there Howard pulled out some cartridges in his hand, and said, “These are forty-five pistol cartridges,’’ and then put them back, and pulled! out another cartridge, and said, “That is a Winchester cartridge, a Winchester forty-five, and shoots smokeless powder.” He asked him what he meant by it, and he said nothing. Witness further testified that Howard said “Goebel would die, but said, if there had been something or other on the cartridge, he would have died immediately — something of that kind' — but said he would die anyhow.” He also testified that Howard told him that he had been at the Capital Hotel, where Goebel was carried afte» he was shot, and in speaking of Goebel he said, “Damn him, he will die anyhow.” The witness also testified that Howard pointed to the tree, and said: “'Some guys didn’t understand” but, he said, 'Do you see that tree? If you want to make a dead shot at a moving object, take a sigjht on that tree, and when the object passes by you will make a dead shot every time.’ ” This latter statement is important, as the body of the deceased, at the time the shot was fired, was in line with a hackberry tree viewed from the windows in, the offiqe of the Secretary of ■State. The witness also testified that Howard said, “He had always heard Jack Chinn was considered! a brave man, but you ought to have seen that son of a b-run when that shot was fired out there;” whereupon the witness asked him how he knew, and Howard replied, “Don’t ask me any fool questions.”

Jack Chinn was with Goebel when he was shot. Wharton Golden testified that on the morning of the 31st of January, 1900, he had a conversation with Jim Howard in regard to Jack Chinn, in which Howard said, “I understand Jack Chinn is a great race horse starter, but he never started a 'horse that could run as fast as he can;” whereupon Golden asked' him how he knew, and Howard! replied, “I ought to know; he was with Goebel.” He also testified that on the same morning Howard expressed a desire to join the military company^ of which John Powers was captain. John Powers agreed to it, and said for Howard to get some blankets, but Caleb Powers advised them not “to take Jim into the company.” James S. Stubblefield was deputy assessor of Olay county under Howard, and some two or three days before Howard left for Frankfort he had a conversation with Mm, in which he said: “Jim, I believe I will write down and get Governor Taylor to give me a captain’s place to get up a company here^ and take a number of men down there to fight. Jim said, ‘You can’t fight; you can’t stand up;’ and said, ‘I am attending to that. I am getting letters every once and a while from Taylor, and I will attend to that.’ ” He testified that on Howard’s return from Frankfort he came to his house one night to get the witness’ son to take a horse to London. During the time he was there witness remarked to him that: “You have had a batch of fun at Frankfort,” and he said, “Yes, we have had hell, and cleaned up the patch.” Witness then said, “Jim, what do you mean by cleaning up the patch?” He said, “You know whenever I look through the sights of my pistol or gun I always get meat or money— one; and, by God, this time I have got both.”

Witness testified that he had a subsequent conversation with Howard, and gives it as follows: “ ‘Jim, I have been studying about the conversation we had the other night. Do you mean to say you killed Goebel?’ He said: ‘By God! I mean just what I said.’ I said then: ‘Jim, you ought not to talk so much. You will get yourself in trouble.’ He said: ‘By God1! my friends won’t go back on me, and, if they want me, let them come and get me. -By God! five hundred men can’t take me out of this town.’ ”

Robert Allen testified that he had a conversation with Howard in regard to the assassination of Goebel, in which Howard said, “I know the identical man that did it, and thank the God above for it.” Afterwards Howard came to this witness, and wanted to explain the previous' conversation which they had1 had, and said that he meant to say that he knew who had indicted him, and he thanked the God above for it. This explanation seems to have been made from the fact that some one who' was present when he had the first conversation had suggested that he ought not to have said what he did1 to the witness. John L. Jones was introduced as a witness, who testified that on the morning after the shooting of Goebel Jim Howard came to where he was cooking breakfast, and attracted his attention by giving him a slap on the back, and in the conversation the witness told him there was nothing in the shooting of Goebel, and he replied there was1 — “that he was- shot by a damned dead shot.” The witness testified that after the death of Goebel he had another conversation with Howard, in which he said, “Didn’t I tell you he was shot by a dead •shot?” and further said that “whenever he shot he shot to kill.”

C. T. Jones, son of John L. Jones, testified that Howard said to him, in response to a suggestion that Goebel was not shot, “Yes, he was, and he was shot a deadener.” James F. Dailey, Charles Howard and R. O. Armstrong testified that a few minutes after the shooting Jim Howard and some other men stood on the steps of the executive building (some of whom had guns in their hands) for the purpose of preventing any one from entering that building. Dailey, Howard1, and Armstrong recognized the defendant, Howard, as being one of the men standing on the steps at the time stated. E. T. Lillard, Jr., testified to the similarity in the appearance of the defendant, Howard, and one of the men whom he had seen on the steps of the executive building; that the man he had taken to be Jim Howard was a man with a cast in one of his eyes, but it did not appear so marked at the time he testified as on the day he saw him on the steps. Bowman Gaines and Ben Rake testified that shortly after the shooting they saw a man jump over the fence back of the executive building into Clinton street, and go down that street; that they recognized the defendant, Howard, as being the man whom they had seen. These witnesses all testified that he had a dark or brown stubby mustache at that time.

The defendant did not offer any witnesses who said they were present at the time Dailey and others testified that the defendant, Howard, was on the steps of the executive building. This testimony is sought to be impeached by the testimony of two witnesses who say that Howard was in the office of the Board of Trade Hotel when the shot was fired, and also by the testimony of some of Howard’s acquaintances, to the effect that he had not been wearing a mustache for some time before he came to Frankfort. The testimony of these witnesses that Howard had not been wearing a mustache may be substantially true, and still the jury may not have concluded that it impeached the testimony of the witnesses offered by the Commonwealth to show that he was at the executive building at the time of the shooting. It may have been inferred by the jury that a few days-’ growth of beard gave him the appearance of having a short, stubby mustache at the time the witnesses for the Commonwealth claimed to haAre seen him on the steps of the executive building. One witness for the Commonwealth testified that on the night following the shooting- he saw the accused, Howard, and he had the appearance of having been freshly shaved. The Commonwealth introduced two or three witnesses, who testified that neither Howard nor his alibi witnesses were in the office of the Board of Trade Hotel at the time the shot was fired. The jury might have reasonably concluded that the evidence offered to establish the alibi was completely destroyed by the evidence of the Commonwealth. The jury had the right to draw any reasonable- inference that could have been drawn from the statement which Howard made that “he remained away from the State house until late in the afternoon on the day of the shooting. The jury may have regarded the statement as being discredited from the fact that Howard had reason to believe he had friends at the State house, and naturally would have gone there on that account, and also in regard to the business which he claims brought him to Frankfort. The jury may have attached some importance to the fact that'Caleb Powers objected to him’joining John L. Powers’ company on the morning after the assassination. It is claimed that the testimony of John L. Jones is not worthy of credit, because he- had been in the penitentiary on two occasions for manslaughter, and that he had been looking up testimony for the prosecution on promise that he would be paid for his services. It is claimed that Stubblefield’s testimony was impeached by proof of bad character, and by proof that he had made statements inconsistent with those made upon the witness stand. Stubblefield had been a school teacher, deputy sheriff, and deputy county assessor under the accused, Howard. He states the circumstances under which he disclosed the statements which he claims Howard made to him. He went to Cincinnati,, and it was reported in Clay county that he was making statements showing Howard’s connection with the killing of Goebel. At this Howard’s friends became incensed, and the witness was advised to leave the county, or he would be killed. After this he says he concluded to tell what Howard stated to him, but says he had not done so previous to that time. His own testimony shows that he did not condemn Howard for killing Goebel, if he did it, but, on the contrary, at the time of the conversation and afterwardis, would have protected him, if possible, from prosecution therefor. Jones and Stubble-field are the kind of men to whom one might suppose Howard would give his confidence if he had killed Goebel. He never would have made such an admission to a man in his neighborhood who abhorred murder, and believed that murderers should be punished. The jury that tried Howard) would not have subjected itself to the charge of faulty reasoning if it had concluded that Jones and Stubblefield were not first-class citizens, but were the kind of men that Howard would have naturally selected for the purpose of imparting the fact that he had killed Goebel.

I have called attention'to the leading facts of the case with the view of showing that an error slightly prejudicial to the defendant would not justify a reversal of this ease, because the Code of Practice, which confers jurisdiction upon this court to review the action of the lower court in criminal cases, gives the court the power to determine from all the facts in the case whether the substantial rights of the accused have been prejudiced by the action, of the lower court. On the examination in chief, the accused, Howard, desired to show the purpose for which he came to Frankfort, and to do so the following questions were propounded by his attorney, and the following answers were made: “Q. When were you here again? A. I came here on the 30th January. Q. Is there an indictment pending against you. A. Yes, sir; I am indicted in Clay county. Q. For what? A. For killing George Baker. ... Q. What did you come down here on the 30th for? A. I came here to try to get a pardon. Q. For what? A. For the killing of George Baker.” On cross-examination the witness was asked: “Q. Was not he an old man, unarmed, with Ms hands up, begging you for God’s sake to spare his life? A. I could not say whether he was unarmed or begging. I do not remember very much about him.” It is insisted that this question was an improper one, and the answer thereto was prejudicial to the defendant. For the purposes of what I will say with reference thereto, I will concede that it was an improper question; but whether it was prejudicial or not, in view of the facts developed in the record, is entirely a different question. The accused testified that lie was indicted in. the Clay Circuit Court; that he came to Frankfort to get a pardon for “the killing of Baker.” It will be observed that Howard testified that he had killed Baker; that he was indicted for it; that his plea was “emotional insanity.” He did not claim that he had killed Baker in self-defense, but that he had done so when he was insane. On cross-examination of two or three witnesses by Howard’s attorney the witnesses were made to state substantially that the accused' had killed Baker. The jurjr had before them testimony that he had killed Baker, that he was indicted for it, that he had no defense except emotional insanity, and that he had applied to Governor Taylor for a pardon for the killing of Baker; thus calling the jury’s attention to the fact that he was unwilling to be tried by a jury of his peers on the charge of killing1 Baker. Now, with all these facts before the jury, together with the facts that I have recited above, I do not think the answer which he made to the objectionable question prejudiced him in the mind of the jury. The answer was not an acknowledgment that he had killed Baker under the circumstance indicated by the question, for he said he could not remember very much about Baker, which answer is consistent with his plea of emotional insanity.

It is urged that the testimony of one W. D. Weaver, late superintendent of schools, in relation to what Judge Tinsley said to the accused, Howard, is incompetent and prejudicial. He testified in regard to Howard’s return from Frankfort, and what took place in the court house at London. He said Howard came in, shook hands with some present, passed on to Judge Tinsley, and the judge said, “Good morning, dim,” reaching his hand, and he said, “I am glad to see you,” and they greeted each other. The judge said, “Jim, I want to compliment you on what you did in Frankfort.” Following the foregoing statement the witness was asked, “What did Jim- Howard- do?” He answered, “He nodded his head, and passed on. Howard did not open his mouth.” From the testimony of Weaver Judge Tinsley did not mention anything which Howard had done at Frankfort. He simply said he heard of him through liis- son, who was a member of a military company at Frankfort. The employment of the word “compliment” would indicate1 that Tinsley desired to commend him for some act. If Howard had accommodated the son of Judge Tinsley while at Frankfort, he newer would have thanked him by saying that he desired to compliment him for what he had done. There is nothing proven in this record to show that Howard did anything at Frankfort worthy of mention unless the testimony tends to connect him with the assassination of Goebel. It is true, the witness says that Howard 'said nothing, simply nodded his head. The nod did not indicate that he was adverse to receiving words of compliment from Judge Tinsley, but, on the contrary, it would imply that he wars willing to accept the compliment which the judge gave him for what he did at Frankfort. It is but just to Judge Tinsley to say that he denies he used the language imputed to him by the witness, Weaver; but, in my opinion, the jury should be allowed to determine what, if any, weight should be given to this testimony. If Howard had failed to nod his head, then I would say that the testimony was incompetent.

While I think the instruction on the subject of the effect to be given the testimony of accomplices could- have been somewhat improved by a little change in its phraseology, yet, for the reasons which are given in the dissenting opinion this day delivered in the case of Powers v. Com., 110 Ky., 386 (22 R., 1807) (61 S. W., 735), I do not think it was misleading to the jury.

There is another question in the case that has given me some concern, and that is the objectionable remarks made by Mr. Williams, in his closing argument to the jury, with reference to the opinion of the Commonwealth's attorney, Mr. Franklin, as to the guilt of the accused, and the penalty which should be inflicted upon bim. Whatever the opinion of the court may be, or my individual opinion as to the guilt of the accused, he is entitled to have a fair trial, and, as I can not determine with reasonable certainty as to what might have been the effect of the remarks on the mind of the jury, I do not dissent from the conclusion of the court that the defendant is entitled to a new trial.  