| Ky. Ct. App. | Jun 28, 1922
Opinion op the Court by.
Reversing.
The appellants were jointly indicted for the murder of Harvey Smith. They had a joint trial under the indictment resulting iim -a verdict finding each- of them guilty of voluntary manslaughter and fixing the punishment of each at confinement in the penitentiary twenty-one years. They were refused a new trial and have appealed. It. would serve no good purpose- to set forth or discuss in the opinion the evidence heard on the trial.' As the case must.be retried, -it is the safer course to withhold general comment upon its- force and! -effect. Nevertheless it is proper to say that none of it seems to have been fatally incompetent, nor is there any ruling of the'trial court in the matter of excluding offered evidence, -seriously complained of b-y the appellants.
The record, however, 'discloses! error committed by the trial court in instructing the jury, which will compel the reversal of the judgment. As worded each of the several instructions given required the jury to convict or acquit both defendants, though the conviction or acquittal -of only -one of them may have been authorized by the evidence, -and under correct instructions the jury might have so found. Such error was ¡necessarily so prejudicial to the substantial rights of the appellants as to have prevented a fair and impartial trial. On another trial -the court below should add to such of the in-s-truc
Other errors assigned by the appellants for a reversal it is deemed unnecessary to consider, as they will not ocenr on another trial. For the reasons indicated the judgment is reversed, as to both appellants, and cause remanded for a new trial and other proceeding's not inoonsisteinit with the opinion.