199 Ky. 760 | Ky. Ct. App. | 1923
Opinion op the Court by
Reversing.
Appellant has been tried three times for killing Alonzo Bledsoe. The first trial resulted in a hung jury. Upon a second trial, he was convicted of manslaughter, and sentenced to five years’ confinement in the penitentiary. That judgment was reversed by this court in an opinion reported in 192 Ky. 223, 232 S. W. 646, where a full statement of the evidence for .and against the defendant may be found. Upon substantially the same evidence, and under instructions conforming to that opinion, defendant was again convicted of manslaughter on the last trial.
Since, under the uniform decisions of this court, that opinion is the law of the case,-it obviously precludes defendant from raising and us from reconsidering either the instructions or the sufficiency of the evidence to sustain the verdict, even though on the last trial defendant’s punishment was fixed at twelve years in the penitentiary,
Two other grounds upon which defendant seeks a reversal of the judgment are, that the court erred in admitting a dying declaration of decedent, and in permitting the indictment to go to the jury with endorsement thereon of the verdict on the second trial.
It was thoroughly established, and without contradiction, that when decedent made the statement admitted as- a dying declaration, he was in extremis and had abandoned all hope of recovery, and. there is no merit in this contention.
While it is error to give the jury an indictment upon which a former verdict of conviction is.endorsed, it is not reversible error unless the defendant objected and excepted thereto at the time, and he is not excused from so doing even though he did not know of such endorsement, as due diligence required him to know thereof Vinegar v. Commonwealth, 104 Ky. 106, 46 S. W. 510;
The remaining complaint is of the conduct of the Commonwealth’s attorney in persisting in asking improper and prejudicial questions for the purpose of getting before the jury defendant’s commission of other offenses. Upon the former appeal of this case, the introduction of such evidence, even though later excluded from the jury’s consideration, was assigned as error, and while the- reversal was not based on that ground, we devoted a considerable portion of the opinion to a consideration of the question, and concluded our discussion thereof as follows: “Measured by the foregoing prihciple-s we find that the offenses about which accused was interrogated, and to which objection was made, were entirely disconnected and distinct from the crime for which he was being tried. They show no/ motive for the commission of the crime charged; they were not committed for the purpose of enabling accused to commit the offense under trial or to enable him to conceal it, therefore any evidence as to these -offense-s, was improperly admitted. It is said that any prejudicial effect arising from the admission of such testimony was removed by the court’s admonition to the jury at the close of all the evidence not to consider it, but since a new trial will be ordered for other reasons, and the attorney representing the Commonwealth will be careful not to interrogate accused along these lines upon a retrial, we deem it unnecessary to discuss the effect of this testimony.”
Notwithstanding this plain injunction, that upon a retrial of the case evidence of defendants guilt of other offenses should not be introduced and that accused should not be interrogated along these lines, the attorney for the Commonwealth repeatedly and persistently interrogated accused about these matters, and, although the court sustained objections to practically every one of these questions, they were so formed that in our judgment he succeeded in conveying to the jury the information that -the defendant, in addition to killing decedent, had committed most, if not all, of the- crimes referred to in our former opinion.
More flagrant misconduct upon the part of a Commonwealth’s attorney has not 'been called to our attention, and the court should have prevented it, instead of merely
In the recent case of Stewart v. Commonwealth, 185 Ky. 34, 213 S. W. 185, after calling attention to the rule which requires the reversal of a judgment obtained in a civil case by such means, we said:
“There is every reason why the same rule should apply to a criminal prosecution, where the life or liberty of the defendant is at stake, and so it has been held that where the attorney for the Commonwealth persists in asking improper and prejudicial questions, for the purpose of getting before the jury evidence which the law does not permit them to hear, the judgment of conviction will be reversed, since the refusal of the court to permit the witness to answer cannot remove the prejudicial effect which the questions had on the minds of the jnry. Cargill v. Commonwealth, 13 S. W. 916. Under this rule, the conduct of the Commonwealth’s attorney was such as to require a reversal of the judgment.”
And so in this case, while we find no other error in the record, the conduct of the Commonwealth’s, attorney was such as requires a reversal of the judgment, under both the above rule and our former opinion in this case.
'Wherefore the judgment is reversed, and the cause remanded for a trial in accordance with our directions.
