James Douglas Napier appeals from a judgment sentencing him to 15 years in prison pursuant to a jury verdict finding him guilty of involuntary manslaughter in the first degree. KRS 435.022(1). He was tried on an indictment for willful murder. KRS 435.010.
Marvin Ray Cox was shot and killed late one Saturday night or early Sunday morning on the street in front of a tavern or cabaret in Newport, Kentucky, from which he had been ejected a few minutes earlier following a fight between him and the appellant, Napier. According to witnesses for the Commonwealth, when Cox got outside he discovered his billfold was missing, arid two of his companions voluntered to go *122 back inside to retrieve it; as the two companions re-entered the cabaret Napier came out, confronted Cox and asked him, “Do you want any more?” to which Cox either replied “No” or did not reply at all, whereupon Napier kicked him in the stomach (or, depending on the version of the particular witness, did not kick him but backed him across the street), shot him in the face with a pistol, and returned inside; Cox being all the while unarmed and having made no threat or show of force toward Napier.
Napier’s story, corroborated by some of the employes within, and by a freshly discovered pair of witnesses who say they drove up in a car just in time to see all that took place outside, and then left the scene, was that a waitress had asked him to admonish Cox and those at his table to be quiet or leave (Napier had formerly been employed there as a bouncer or “floor manager,” but was present as a customer at this time), whereupon Cox seized him by the coat lapel and jerked him across the table; this precipitated a fight, and some of the employes and bystanders assisted him in putting Cox and his friends ortt on the street; as Cox went out the door he shouted that he would be back, addressing Napier by an obscene name; Napier waited inside for 10 or IS minutes and, in view of Cox’s threat to return, decided he had better go home; as he went out the door he was confronted by Cox, who had a gun in his hand and announced, “I am going to kill you;” two of Cox’s company forthwith seized and jerked him out onto the sidewalk, and he grappled with Cox; the struggle “lasted all the way across the street,” the gun “went off,” Cox fell to the sidewalk, and Napier took refuge for the time being inside the cabaret; Napier did not have a gun in his hand or in his possession at any time and did not shoot Cox.
The gun that killed Cox was never found. His billfold was discovered in a toilet bowl in the men’s room of the cabaret. The fatal bullet entered his face just to the left of the nose, took a downward course and came out below the right ear.
Appellant’s first contention is that he was entitled to a directed verdict of acquittal and that the verdict was flagrantly against the evidence. Our reaction is that only the Constitution saved him from a directed verdict for the Commonwealth.
Over appellant’s objection the Commonwealth was permitted to introduce a post mortem photograph of the victim’s face showing the bullet hole and other marks of the fray. It is described as “grisly and gruesome.” Since a pathologist had quite clearly demonstrated to the jury the points of entry and exit, we concede that the photograph may not have been strictly necessary. Nevertheless, an accurate photograph is more believable than any chart or second-hand description and in this case, as it developed, appellant’s theory that Cox somehow managed to shoot himself made the precise location of the wound vitally important.
It has been said that if the evi-dentiary value or necessity of a gruesome photograph outweighs its possible prejudicial effect it may be admitted. 29 Am. Jur.2d 861 (Evidence, § 787). “The rule prohibiting the exhibition of inflammatory evidence to a jury does not preclude the revelation of the true facts surrounding the commission of a crime when these facts are relevant and necessary.” Salisbury v. Commonwealth, Ky.,
This case had been tried on a prior occasion, and from time to time in questioning the witnesses counsel for one side and the other made reference to the former trial. During his summation the Commonwealth’s Attorney, after insisting upon a verdict of murder, said to the jury, “ * * * if you decide he is guilty, whatever you do, don’t hang up on what the punishment should be, and make us try this case over again,” to which counsel for appellant objected and moved for a mistrial. The motion was overruled, but the court admonished the jury as follows:
“I will overrule your motion. The jury is admonished not to consider the comments of the Commonwealth’s attorney by that last remark, it was entirely improper. It is incumbent upon you to agree among yourselves as to whether the defendant is guilty or not guilty, and then set the punishment. That is up to you to agree, or not to agree. If you don’t agree, that is up to you.”
In Baker v. Commonwealth,
The circumstances- in this case were quite different from those in Baker. Here the jurors had not begun their deliberations, and the trial court gave a prompt, clear and forceful admonition sufficient to obviate whatever consideration they might otherwise give to the improper statement. As aptly observed in the Commonwealth’s brief, if it cannot be presumed that the jurors heeded the admonition their intelligence stands in grave doubt indeed. We find the possibility of prejudice too remote to warrant serious consideration of a reversal.
The remaining arguments have a great deal of substance but for one fatal circumstance. Appellant says there was no room in the case for the instructions on involuntary manslaughter and that the instruction on accidental shooting was improperly drawn because it did not cover his theory that he did not fire the gun. All of this may be so. On the manslaughter question, see Vinson v. Commonwealth, Ky.,
The judgment is affirmed.