Lewis Bogie was convicted of aiding and abetting in the theft of a riding lawn mower and rototiller owned by one Dalous Hisle and was sentenced to three years’ imprisonment. KRS 433.220. He appeals, contending that the trial court committed prejudicial error in (1) sending the jury back to correct a verdict which was inconsistent on its face, (2) admitting evidence of Bogie’s previous conviction of felony, and (3) excluding evidence that one of the prosecution’s witnesses had been convicted of a felony.
The indictment charged Bogie, Clay Curtis and Donald (Dan) Hughes jointly. Curtis having disappeared, the case went to trial against Bogie and Hughes. Hughes was found guilty of aiding and abetting grand larceny, and in fixing his sentence at one year the jury recommended clemency. Bogie, as we have sаid, also was found guilty as an aider and abettor, and his punishment was fixed at three years.
According to the evidence the three defendants went to Hisle’s house in a truck owned by Bogie. Hughes was a regular employe of Bogie’s and Curtis also had done some work for him upon occasion. Bogie remained in the truсk while Curtis entered Hisle’s garage and moved the mower and tiller outside, but all three men participated in loading them onto the truck bed. The theory of defense for both Bogie and Hughes was that they had been given to understand by Curtis that this equipment belonged to him and was stored at the home of his sister-in-law, hence they did not realize it was being stolen.
To understand the argument about the verdict it is necessary that the instructions be explained. In substance they were as follows:
1. If Bogie оr Hughes, or both of them, stole the mower and tiller and the value was $100 or more, he or they should be found guilty of grand larceny and given a punishment of not less than onе nor more than five years in prison.
2. If Bogie, Hughes or Curtis, or any two of them, stole the mower and tiller and the value was $100 or more, and if either Bogie or Hughes was рresent or near enough to aid and abet and did so, he or they should be found guilty of aiding and abetting grand larceny and given a punishment of not less than one nor more than five years in the penitentiary.
3. If Bogie or Hughes, or both of them, stole the mower and tiller, or aided and abetted therein, and the value was less than $100, he or they should be found guilty of petit larceny and given a punishment of not less than one month nor more than twelve months in jail or a fine of not less than $50 nor more than $500.
4. Reasonable doubt on the whole case.
5. Unanimous verdict.
When the jury first returned, it had written two verdicts on the face of the paper containing the instructions. Its verdict on Bogie appeared immediately after Instruction No. 2 and was as follows:
“We, the Jury, find Lewis Bogie guilty of aiding and abetting grand larceny, and sentence him to the penitentiary for a period of three (3) years, /s/ Harrison D. Peet, Foreman.”
*769 The verdict on Hughes appeared after Instruction No. 3, and it was as follows:
“We, the Jury find Donald (Dan) Hughes guilty of petit larceny аnd sentence him to the county jail for four (4) months, /s/ Harrison Peet, Foreman.”
The record shows that when these verdicts were tendered “the Court informed the jury that thе verdict was inconsistent in that the articles involved were of one value and instructed the jury to return to the jury room for the purpose of resolving the inconsistency. The jury returned to the jury room and came hack with the above set forth verdict against the co-defendant Donald (Dan) Hughes stricken out and a new vеrdict as to Hughes written at the top of Instruction No. 2 and the verdict as to the Defendant Bogie not changed in any way.”
The new verdict on Hughes read as follows :
“We the Jury find Donald (Dan) Hughes guilty of aiding and abetting grand larceny and fix his sentence at one yr. The Jury further recommends clemency, /s/ Harrison D. Peet, Foreman.”
Counsel for Bogie objected to the jury’s being sent back to correct the verdict and promptly moved for a mistrial. It is our opinion, however, that the trial court did precisely what should have been dоne and that there was no error.
It has been held that when a jury has returned a verdict with instructions that are discovered to have been incorrect the case may not be re-submitted for further deliberation under corrected instructions. Roberts v. Commonwealth,
Bogie testified in his own behalf. He was asked upon cross-examination whether he hаd been convicted of a felony and answered, “For income tax in 1953.” To the next question, “Is that the only felony?” counsel objected and the objectiоn was sustained, following which the court admonished the jury to the effect that the felony conviction was to be considered only if and insofar as the jurors werе of the opinion that it reflected upon his believability as a witness, and not as evidence bearing upon his guilt or innocence of the charge being triеd. Bogie does not challenge the propriety of these actions under the law as it has existed heretofore, but he asks us to reconsider whether аn old conviction should ever be admitted for impeachment purposes. We recognized, of course, in Cowan v. Commonwealth, Ky.,
The last question pertains to a witness named Witt, whо lived near the Hisle home'and observed the activities of Bogie, Hughes and Curtis in and around the premises at the time the mower and tiller were taken, and who reported the incident by telephone to the local sheriff. He was called as a witness by the Commonwealth and recited what he had seen and done upon the occasion in question. Later, during presentation of the case for the defense, and after both Bogie and Hughes had testified, defense сounsel called Witt to the stand and asked him one question, “Have you been convicted of a felony?” An objection by the Commonwealth was sustained, and hе was not permitted to answer. By avowal it was shown that he had been convicted of a felony, but not what felony.
Whether it was an error not to permit the dеfense to put Witt on the stand for the purpose of impeachment under CR 43.07 we need not decide, because in any event it could not have been prejudicial. Bogie and Hughes both testified, and in their testimony they admitted the facts to which Witt testified. Witt’s credibility therefore was utterly immaterial.
The judgment is affirmed.