Nеvalene Poe, the appellant, and her husband, Jasper, were indicted jointly for the murder of Will Pollard. Pollard was shot during a dispute concerning Poe’s right to use a water well formerly on the Pollard farm, but at the time of the shooting apparеntly it was located on the highway right of way. At the trial, the Poes maintained that Nevalene Poe shot Pollard in defense of hеrself and her husband. Jasper was acquitted; Nevalene was convicted of voluntary manslaughter, and sentenced to рrison for two years.
This appeal involves questions of law alone. The first error asserted by the appellant concerns the instructions given, over objection, by the trial judge. They were patterned closely upon the instructions set out in Stanley’s Instructions to Juries, section 869, and approved by this Court in Saylor v. Commonwealth,
*902 Instructions werе given covering murder and voluntary manslaughter, self-defense, the negative of self-defense, and the penalties applicable to each crime. Instruction VI reads:
“If you shall have a reasonable doubt from the evidence of the dеfendant, Nevoline Poe, having been proven guilty or if you believe from the evidence beyond a reasonable dоubt that the defendant, Nevoline Poe, has been proven guilty, but entertain a reasonable doubt from the evidence аs to whether her crime be wilful murder or voluntary manslaughter as those defenses are defined in these instructions, then you ought to find her guilty of voluntаry manslaughter and fix her punishment as provided in instruction No. II.”
Instruction VI is an attempted combination of an instruction on reasonable doubt on the whole case and one on conviction of a lesser offense. The reasonable doubt оn the whole case portion of the instruction is incomplete; it does not require the jury to acquit Nevalene Poе if they have a reasonable doubt of her guilt. Furthermore, it seemingly authorizes the jury to return a verdict of guilty of voluntary manslaughtеr even though they have a reasonable doubt of Mrs. Poe’s being proved guilty of any offense. We think the form of Instruction VI was еrroneous and the giving of it constituted reversible error. We are not disposed to follow Saylor v. Commonwealth, 210 Ky. 796, 276 S.W. 841, .for reasons herein set out.
The Commоnwealth contends that any error in Instruction VI was cured by other instructions which set forth correctly the necessary principle of reasonable doubt. Instruction VI required the jury to believe the defendant guilty beyond a reasonable doubt before it returned a verdict of either willful murder or voluntary manslaughter. We held in.Lindon v. Commonwealth,
The appellant objected also to the introduction during the triаl of photographs showing the body of Will Pollard, and of the shirt worn by him at the time he was shot. Before any evidence had beеn introduced, the following statement was made by one of the attorneys for the Poes:
“We would like to make an admission here that Will Pollard came to his death as the result of a gun shot wound as referred to in the indictment ; that the shot made a holе through his body, one on the outside of the left breast, and the other on the right shoulder, and that he fell in the driveway leading to his house, about even with a well which will be shown in the evidence here from a map drawn by an Engineer.”
The Commonwealth’s Attorney refused to accept this admission as a fact. He then proceeded to introduce in evidence the shirt and photоgraphs of the body. The introduction of gruesome photographs, bloody clothing, and the like is almost inevitably accompanied by the risk of inflaming the minds of the jurors to the prejudice of the accused. Where necessary to prove а contested relevant fact, their probative value is usually held to outweigh any possible prejudicial effect thеy might have. But where the facts sought to be proved by the possibly prejudicial evidence are admitted *903 by the defense, it is diffiсult to understand what probative value (other than as cumulative evidence) such evidence might have. While we are not deciding that the evidence objected to is necessarily prejudicial, it is suggested that in the event of a new trial, the Cоmmonwealth’s Attorney be more careful in introducing possibly inflammatory evidence unless the need for its introduction is more сlearly shown than in the present record. Furthermore, no explanation was given for the refusal of the Commonwealth to accept the offered admission of the Poes.
Judgment reversed, with directions to set it aside, and for proceedings consistent with this opinion.