Gilbert v. CommonwealthGilbert v. Commonwealth
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DELIVERED THE OPINION OE THE COURT.
This appeal is prosecuted from a judgment of the Owen Circuit rendered upon a verdict against the appellant upon an indictment charging him and others with the offense of horse-stealing. Numеrous grounds were filed in support of the motion for a new trial, and the same having been overrulеd, appellant asks a reversal on account of various errors of the trial court.
Wе deem it unnecessary to notice in detail the several reasons assigned for reversal.
Aрpellant complains of Instruction No. 1 given by the trial court. The instruction is not as clear as should have been. It is open to the construction that it authorized the jury to convict if appеllant received the horse knowing it to have been stolen.
Appellant was not accused of this offense, and the jury was not authorized to find him guilty of the offense charged unless he stole the hоrse either by himself or in company with others, and the instruction should have so told the jury.
Appellant had moved for a continuance on account of the absence of several witnessеs, which motion was overruled; but his affidavit was allowed to be read as the deposition of the witnesses.
It appears that during the argument of the Commonwealth’s Attorney, in closing the case to the jury, the following occurred: He said to the jury: “When a defendant was brought to trial for horse-stealing they always had an affidavit as to what two or three mythical witnesses would state that nobody knew, [the dеfendant objected, and the Commonwealth’s Attorney then added,] although in this case James Renfrow and William Hedges *923are actually persons.” To all of which defendant at the time excepted and still excepts.
The Commonwealth’s Attorney, in the ‘same argument, stated to the jury as follows: “I сould if I had thought it necessary prove by fifteen or twenty as good men as live in New Liberty precinсt that Wm. Keefe and George See were in New Liberty until eleven o’clock that Saturday night, and сould prove a perfect alibi for Wm. Keefe and Geo. See.”
“The defendant objected, and the court said to the jury that you are to consider only the proof before you, tо all of which the defendant at the time objected and excepted and. still excepts.”
The Commonwealth’s Attorney, in the same argument, stated as follows: . “That when J. L. Piner testified at the examining trial this defendant found out that his story to S. D. Duvall, the sheriff, would not wórk, he changed it.”
“The defendant objected, аnd the court said: ‘You will consider only the proof before you.’ To all of which the defendant аt the time objected and excepted’ and still excepts.”
The Commonwealth’s Attorney statеd to the jury in the same argument as follows: “I have here somewhere the minutes of the- examining court, and that the said minutes will show that J. L. Piner testified at the examining court to all that he testified to in this trial;” when thе fact was, and is, that J. L. Piner only testified before the Grand Jury. The Commonwealth said: “Perhaps that is so, but I saw it somewhere in the record.”
“The defendant objected, and the court said to the jury: ‘You will cоnsider the proof before you.’ ”
Under the evidence in’ this case and the circumstances *924surrounding- the trial, the remarks and statements of the attorney for the Commonwealth were almost certain to be very prejudicial to the appellant and ought not to have been made. The ruling of the court in respect thereto could not prevent the injury to the defendant naturally resulting from the statements complained of.
It is earnestly insisted fоr appellant that Keefe and See, who were jointly indicted with appellant, and to whom a separate trial had been awarded, were not competent witnesses against аppellant. It is true that in Edgerton v. Commonwealth, 7 Bush, 143, this court held that a party jointly indicted with another could net be allowed to testify for the Commonwealth, but that decision was placed upon the ground that such person could not testify for the defendant. But that decision was rendered beforе the enactment of the law allowing the defendants in criminal cases to testify in their own behalf and in behalf of each other. The law now permits defendants in all cases to testify in behalf of thеmselves and for each other. It seems clear now that such defendants may testify for the Commоnwealth if they are willing to do so. The testimony of Keefe and See was competent so fаr as it conduced to .show the guilt of the appellant, but no further.
The court, however, should have instructed the jury that appellant could not be convicted alone upon the testimony оf Keefe and See, both of them being charged with the same crime, and in law at that time should have been treated as accomplices.
For the reason indicated the judgment is reversed and cause remanded with directions to award appellant a new trial, and for proceedings consistent herewith.