Opinion op the court by
JUDGE BURNAM
Reversing,
followed by dissenting opinion op JUDGES HOBSON and WHITE, and the dissenting opinion op CHIEF JUSTICE PAYNTER.
The appellant, James Howard, was jointly indicted with Henry Youtsey, Berry Howard, Harlan Whitaker, and Richard Combs for the murder of William Goebel, and was, upon separate trial, found guilty of murder, and judgment was rendered in pursuance of the verdict. The in-' dictment charges, viz.: “That the said Henry Youtsey, James Howard, Berry Howard, Harlan. Whitaker, Richard Combs, and others then and there acting with them, but [358] who are .to this grand jury unknown, in the county of Franklin, on the 30th day of January, 1900, and before the finding of this indictment, unlawfully, willfully, feloniously, of their malice aforethought and with intent to kill, did kill and murder William Goebel, by shooting and* wounding him with a gun or pistol loaded with powder or other explosives, and lead and steel ball and other hard substances, and from which said shooting and wounding the said Goebel died on the 3d day of February, 1900; and the indictment does further charge that one of the above-named defendants, or another person then -and there acting with them, but whose name is to this grand jury unknown, did so as aforesaid then and there kill and murder said Goebel, and the other of said defendants did then and there counsel, advise, assist, aid and abet same; but which so actually fired the shot, and which so actually counseled, aided, advised, and abetted therein, is to this grand jury unknown.”
Appellant complains of the indictment because it charges him with being the principal, and at the same time of being the aider and abettor of the four other persons named therein, and of- another person then and there acting with them, but who is to the grand jury unknown, in the commission of a crime which was the result of a single act,the firing of a single shot;and to support this contention we are referred, to the cases of Com. v. Patrick, 80 Ky., 605; 4 R., 660; Mulligan v. Com., 84 Ky., 230; 8 R., 211; 1 S. W., 417. In the Patrick case the offense charged in the indictment was that Amos and Wiley Patrick shot at and wounded Joseph Dyer with a pistol, and that each of them was-present, and aided and encouraged the other to commit the offense. In that case the demurrer to the indictment was sustained upon the ground that the punishment im[359] posed by the statute was upon the person alone who actually committed the act constituting the offense, and that there was no provision in the statute for the punishment of an aider and abettor; and that, as it was a purely statutory offense, an indictment did not lie for aiding and abetting therein, the aiding and abetting being a minor offense, punishable only as a misdemeanor. In the Mulligan case there was no question as to the sufficiency of the indictment, but the question was one of variance. The indictment was against' Mulligan alone, and charged him as the actual perpetrator of the crime, and the court held that proof that he was only an aider and abettor constituted a variance. When the court isaid that the indictment must disclose the name of the principal, it did not mean that there could be no indictment if the name of the actual perpetrator of the crime was unknown. The case adjudged was that proof that the defendant aided and abetted the commission of the felony will not support an indictment charging him as the actual perpetrator of the crime, unless the actual perpetrator is joined with him. In this case the indictment charges that one of the defendants ñredí the shot, and that the others were present, aiding and abetting, and that the grand jury does not know which one fired the shot. This is in effect an averment in the alternative as to the different modes and the different means by which the offense may have been committed as authorized by section 126 of the Criminal Code. That the actual perpetrator of a criminal act and one present aiding and abetting him may be jointly indicted in the alternative, one as the principal and the other • as the aider and abettor, and that either, may be convicted as principal or as aider and abettor, has been frequently held by this court. See Benge v. Com., 92 Ky., 1 (17 S. W., 146); 13 R., 308; Travis [360] v. Com., 96 Ky., 77; 16 R., 253; (27 S. W., 863); Howard v. Com., 96 Ky., 19; 16 R., 201 (27 S. W., 854); Jackson v. Com., 100 Ky., 239; 18 R., 795 (38 S. W., 422). To say that one who is known to have been present aiding and abetting a murder can not be punished because the person who fired the shot is' not known would, in large degree, destroy the efficacy of the law for the punishment of crime.' Bishop in his New Criminal Law (section 495,) says, viz.: “A grand jury should not indict a man unless reasonably informed of his guilt; but the jurors may know it sufficiently while ignorant of an identifying circumstance such as ought ordinarily to appear in the allegation. Then they may state the main facts, adding that, this circumstance is unknown to them, and the indictment will be good. Thus, if they are ignorant of identifying names, the allegation may be in this form; that is, the indictment, instead of saying what they are, may state that they are to them unknown.” .We are, therefore, of the opinion that the indictment comes up to the requirements of section 124 of the Criminal Code.
The nex-f ground of complaint is that the instructions given by the court to the jury do not fairly and correctly state the law of the case. Only three instructions were given, and only two of them are complained of upon this appeal. The basis of appellant’s objections to the first instruction are the same as those which are urged- against the validity of the indictment, itself. It, in effect, tells the jury that if they believe from the evidence, beyond a reasonable doubt, that the defendant willfully and maliciously shot, the deceased with the intent to kill him, and from which shooting he afterwards died; or if they believe from the evidence, beyond a reasonable doubt, that either of the other defendants named in the indictment willfully and maliciously shot the deceased, and from which shooting he soon thereafter died; and they believe from [361] the evidence, beyond a reasonable doubt, that this defendant was then and there acting with them, or any one of them, and did then and there counsel, aid, and abet such shooting, — they should find him guilty. This instruction has been frequently approved by this court in cases similar to that on trial, and is a fair and clear statement of the law. The next instruction complained of is as follows: “The defendant can not be convicted upon the testimony of an accomplice, unless such testimony is corroborated by other evidence tending to connect the defendant with the offense; and such corroboration is not sufficient if .it merely proves the commission of the offense, and the circumstances thereof.” This instruction is substantially in the language of section 211 of the Criminal Code, and in cases where only one accomplice was introduced by the Commonwealth would be a sufficient compliance with the Code; but in this case the Commonwealth introduced as witnesses two persons who had been previously indicted as accessories before the fact to the murder of the deceased, and it complained that the instruction is erroneous and misleading because it fails to tell the jury that the testimony of one accomplice or accessory before the fact can not be used to corroborate the testimony of the other for the purpose of convicting the defendant. The rule as to the corroboration of accomplices is stated in Rose. Or. Ev. 122, as follows: “There should be some fact deposed to independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it.” Russ. Crimes, 962, says that, viz.: “It is not sufficient to corroborate an accomplice as to the facts of the case in general, but that he must be corroborated ,as to some material fact or facts which go to prove that [362] the person was connected with the crime.” The degree of evidence which shall be deemed sufficient to corroborate the testimony of an accomplice is a matter for the jury; but there must be some fact deposed to independently altogether of the evidence of an accomplice, whether one or a dozen is introduced by the Commonwealth, which, taken by itself, fairly tends to' connect the defendant with the commission of the crime, so that this conviction will not rest entirely upon the evidence of accomplices (see People v. Platt, 4 N. Y. Cr. R., 53; 3 Rice, Ev. p. 511, and authorities there cited); and this instruction is erroneous because it fails to present this idea.
We will next consider the claim of appellant that numerous errors to his prejudice were committed in the admission of incompetent testimony. As most of the objections to the testimony are based upon the same general rule of evidence, with a view to brevity we will consider a number of them together. First, it is claimed that, as there was no charge of a conspiracy in the indictment, it was error to allow numerous witnesses to prove the condition of the Statehouse yard on the morning of the 30th of January, the day on which deceased was shot, ás compared with the five or six preceding days, with reference to the number of people therein; and also that the witness Culton was permitted to testify as to conversations had with Youtsey on the 12th and 13th of January, in which Youtsey detailed a plan to him for shooting the deceased from the office of the Secretary of State, and the manner in which it could be done, and how the perpetrator could escape through the basement of the building; and also as to conversations in which Youtsey talked to him about smokeless powder, etc.; and that the witness Golden was permitted to testify that John Powers gave to Youtsey a key to the office of the Secretary [363] of State on the morning of the 30th day of January; and that the witness Ricketts was permitted to testify as to conversations had with Youtsey as to the killing of the deceased several days previous to the 30th of January, and also as to his conduct on the morning of the 30th in conducting men from the agricultural to the executive building, and stationing them at the foot of the stair steps, and as to directions given them by him; and to the testimony of McDonald to the effect that he had seen Berry Howard and Culton in conversation near the capítol building just prior to the shooting; and the testimony of the witness Day as to talks with Youtsey. Of course, the testimony of neither of these witnesses has any bearing upon the guilt or innocence of the defendant, Howard, unless the Commonwealth, by other testimony, establishes a guilty connection between the defendant and Youtsey, and shows to the satisfaction of the jury either that he fired the fatal shot, or was present and aided and encouraged Youtsey or another to do so. The testimony in this case.is altogether circumstantial and, as was said in the case of Obrien v. Com., 89 Ky., 362; 11 R., 534 (12 S. W., 471); ‘Necessarily, where the proof of a crime can only be shown by proof of circumstances, the evidence should be allowed to take a wide range; otherwise, the guilty would often go unpunished. It is true that there must be some connection between the fact to be proven and the circumstances offered in support of it, yet any fact which is necessary to explain another, or which offers a particular opportunity for the transaction which is in issue, or shows facilities or motives for the commission of the crime, may be proA’en. ’’And on the trial of one of several defendants jointly indicted for an offense the declaration of a co-defendant, made in the absence of the defendant on trial, in furtherance of the common purpose, [364] is admissible when a prima facie case of conspiracy has been made out. To authorize the admission of such evidence, an express averment in the indictment of the fact of a conspiracy is not necessary. See Goins v. State, 46 Ohio. St., 457, 21 N. E. 476. “But, to make the declaration competent, it must have been in furtherance of the prosecution of the common object, or constituted a part of the res gestae of some act done for that purpose.” See Tayl. Ev. p. 542, section 530.
Mr. Archbold, in his work on Criminal Practice and Pleading (volume 2, p. 1059), gives a very concise, yet comprehensive, statement of the law. He says, viz.: “Wherever the writings or words of any of the parties charged with or implicated in a conspiracy can be considered in the nature of an act done in the furtherance of the common design, they are admissible in evidence against not only the party himself, but as proof of an act from which, inter <Ma, the jurjr may infer the conspiracy itself. But wherever the writings or words of such a party, not being in the nature of an act done in furtherance of the common design, merely tends to implicate others, and not the accused himself, they ought not to be received in evidence for any purpose.” And this doctrine is approved in Wright, Cr. Consp. p. 217, and in Clawson v. State, 14 Ohio St., 234, and State v. Larkin, 49 N. H., 39. It seems to us that these declarations of Youtsey come within the rule laid down in these authorities, and are competent evidence to go to the jurj But it must not be forgotten that the defendant's guilt as principal or accessory can only be finally established by evidence of his own acts. See Wright, Cr. Consp., 69, 71; Steph. Dig. Cr. Law, article 39. And the testimony of B. P. White on cross-examination as to an altercation had by Mm with one [365] of the witnesses for the Commonwealth on the train was competent to show the feelings of the witness, and the same may be said of the objections to the cross-examination of the witness Parker.
Upon the cross-examination of the defendant by an attorney for the Commonwealth he was asked the following questions, and was forced to answer them, over his objections: “Q. What was the offense charged against you for which these gentlemen wrere defending you? A. I have told you that. Q. Tell us now. A.' It was for the murder —for the killing — of George Baker.- I was charged with the killing of him. Q. Was he not an old man, with his hánds uj), and begging you for God’s sake to spare has life? Further along in the cross-examination the same counsel asked the witness “If he did not from a window in the house of Beverly White, with the curtains drawn, in the town of Manchester, shoot Tom Baker, in the presence of his wife and infant children?” to which the defendant answered that he did not. He was then asked whether he was present when this was done, and where he was, and as to who had been indicted for the killing of Tom Baker. No exceptions were taken to these questions with reference to the killing of Tom Baker, and they would not be considered upon this appeal except for the fact that the court has concluded that the judgment must be reversed on other grounds, and a new trial had. The witness was privileged from answering these questions, not -only because it was an attempt to impeach his testimony by proof of particular acts which had no connection with the offense for which he was being tried, but also because, if he answered in the affirmative, he would have subjected himself to prosecution for other offenses having no connection with that for which he was being tried.
[366] In a long line of decisions this court has uniformly held questions of this character incompetent. . In Sodusky v. McGee, 5 J. J. Marsh. 622, John Chowning, a.witness for the appellee, having sworn to facts which occurred in the encounter between McGee and the appellants, was asked by their counsel “if he was not engaged at the time or shortly before the commencement of the encounter, some distance off, playing cards with a negro fellow.”
In passing upon the competency of this question, Chief Justice- Robertson said: “A witness should not be compelled to prove his own general character, nor should he be required to prove any special fact reflecting upon his character, unless it be pertinent to the issue, independent of its tendency to affect his character. His character could not be assailed by other witnesses- by proof of particular facts, and certainly it would be improper to compel him to prove facts relating to his character which others would not be permitted to prove. But, if the fact itself be pertinent and legitimate, it is at least very questionable on principle, as well as authority, whether a witness,’ as a matter of course, would be excused from answering questions relating to it merely because they mighty in some degree tend to subject him to reproach, not infamy, or might tend to reflect upon his character some degree of disparagement. See Starkie, Ev., 137-139, 1-11. Anciently a witness might be compelled to answer questions which reflected infamy upon him (Peake. 129, 130); but this doctrine has been overruled by modern cases. See State Tr. 748; Starkie, 153; People v. Herrick, 13 Johns., 82. How far the tendency of a question to disparage a witness -without rendering him infamous may entitle him to be excused from answering it has not, so far as we know, been settled by authority.” The cases of Cole v. Wilson, 18 B. Mon., 211, and Pence v. Dozier, 7 [367] Bush, 138 are to this effect. And in discussing the question in Saylor v. Com., 97 Ky., 190, (30 S. W., 390), the court said through Judge Paynter: “It is a rule that a witness is not bound to answer any question which would tend to subject him to punishment, presentment, or infamy. Under the bill of rights he can not be compelled to give evidence against himself, but when he becomes a witness for himself in a criminal prosecution, he waives that right so far as the charge under investigation is concerned. But the fact that he does so waive it does not give the Commonwealth the right to compel him to admit the commission of other offenses which would subject him to punishment, presentment, or infamy; for, if this were done, it would be in utter disregard of the bill of rights, and in many cases deter persons accused of offenses from going on the stand as witnesses for themselves, as a forced confession of another offense might subject to greater punishment than the charge under investigation.” In Leslie v. Com. (Ky.), 42 S. W., 1095, (19 Ky. L. R., 1201), it was held that it was prejudicial to the rights of the accused, who was or. trial for murder to ask him upon cross-examination if he had not been arrested for discharging firearms in a certain town, and for carrying concealed weapons. The court said: “This question should only be admissible to show appellant’s guilt of particular acts, and therefore is within the inhibition of section 597 of the Civil Code.” So, in Lewis v. Com. Ky.), 42 S. W., 1127, (19 Ky. L. R., 1139); the court held that it was error prejudicial to the substantial rights of the defendant to have asked the clerk of the Bourbon Circuit Court if there was not an indictment against a witness who testified for the defendant charging her with being accessory to the murder for which the defendant was being tried. The court, [368] through Judge White, said: “This was error prejudicial to the substantial rights of the defendant, and was an attempt to impeach a witness by showing that she had been indicted as accessory to the crime of the murder of Amelia Lewis.”
Witnesses can not be impeached by proof of particular acts o>r offenses that they might have been guilty of, but the inquiry must be confined to the general character, and not to the particular acts charged against the witness. It is evident that the testimony was introduced for the purpose of impeaching or weakening the testimony of the witness, and, we have no doubt, influenced the jury in considering her testimony.” In Baker v. Com. (Ky.), 50 S. W., 54, (20 Ky. L. R., 1778), appellant was on trial for the murder of W. L. White; Upon cross-examination the Commonwealth was permitted, against the objection of the defendant, to prove by him that he was under indictment for house-burning, and also to ask him whether he had been indicted for anything else. This was held prejudicial error. In the very recent case of Pennington v. Com. (Ky.), 51 S. W., 818, (21 Ky. L. R., 542), in which the defendant was convicted of murder, and sentenced to the penitentiary for life, on the trial appellant was asked as to other indictment against him. The court, in an opinion by Judge Hazelrigg, held that “under section 597 of the Civil Code a witness could not be impeached by evidence of wrongful acts except in the manner pointed out, and that the evidence quoted was incompetent, and, from its nature, prejudicial.”
And in the case of Ashcraft v. Com., 60 S. W., 931, (22 Ky. L. R., 1542), decided at this term of the court, it was unanimously held by this court that it was reversible error to ask the defendant on cross-examination as to other indictments against him [369] than that on which he was being tried. In discussing the question as to when a witness may refuse to answer, Greenl. Ev. (14th Ed.), section 454 says: “On this point there has been a great diversity of opinion, and the law remains still not perfectly settled by authorities. But the conflict of opinion may be somewhat reconciled by a distinction which has been very properly made between the cases where the question is not strictly relevant, but is collateral, and is asked under the latitude of cross-examination. In the former case there seems to be great absurdity in excluding the testimony of a witness merely because it will tend to degrade himself, when others have a direct interest in that testimony, and it is essential to the establishment of their rights of property, liberty, or even life, or to the course of public justice. Upon such a rule, one who has been convicted for an offense, when called as a witness against an accomplice, would be-excused from testifying to any transactions in which he had participated with the accused, and thus the guilty might escape. And accordingly the better opinion seems to be that, where tire transaction to which the witness is interrogated forms any part of the issue to bo tried, the witness will be obliged to give the evidence, however strongly it may reflect on his character.” Id. section 456: “It is, however, generally conceded that, where the answer which the witness may give will not directly and certainly show infamy, but will tend to disgrace him, he may be compelled to answer. When it does not, there seems to be no- good reason why the witness should be privileged from answering a question touching upon his situation, employment, and associates, if they be of his own choice — as, for example, in what family he resides, what is his ordinary occupation, and whether he is intimately acquainted with or conversant with certain per[370] sons, and the like; for, however these may tend to disgrace him, his position is of his own selection.” And it is the general rule elsewhere. In the very able and well-considered opinion in the case of People v. Brown, 72 N. Y., 571, the court said: “I am of the opinion that the cross-examination of persons who are witnesses in their own behalf when on trial for criminal offenses should, in general, be limited to matters pertinent to the issue, o,r such as may be proved by other witnesses. I believe such a rule necessary to prevent a conviction for offenses by proof that the accused might have been guilty of others. Such a result can only be avoided practically by an observance of this rule.” The court therefore erred in requiring the defendant to answer the questions.
The Commonwealth was also permitted, over the objection of the defendant, to prove by the witness Weaver that he heard Judge Tinsley say to the defendant: “Jim, I am glad to see you. I want to compliment you on what you did in Frankfort. I learned about you through my son” — and that the defendant did not open his mouth, but just nodded and passed on. There is no claim; that Howard made any response to this remark, nor is there any claim that Judge Tinsley, who is one of the circuit judges of the State, had any connection whatever with the homicide of which the defendant is accused; and, while the testimony is emphatically denied by Judge Tinsley, it was wholly illegal, and incompetent for any purpose, and should have' been excluded.
Another ground of complaint is misconduct of the attorneys for the prosecution ini course of the trial. It is especially complained that the Commonwealth’s attorney pro tempore, in his closing argument to the jury, used these words: “I am commissioned by Robert Franklin to say to the jury that he is in thoror-' 'v’cord and sympathy with [371] the prosecution, and that he thinks the defendant guilty, and hopes the jury will hang him higher than Haman.” It appears that Robert Franklin, the regular Commonwealth’s attorney, did not participate in the prosecution of the accused because of sickness, and that his place was supplied by the appointment of the pro tempore attorney who used the language complained of. Mr. Franklin was not a witness in this case, and, if he had been, he would not have been permitted to have expressed an opinion of the guilt or innocence of the accused; and his opinions on that subject, whatever they may have been, were wholly irrelevant and incompetent; and the facts that he occupied a high official position, that he was prevented by sickness from the discharge of the duties imposed upon him by law in connection with the prosecution, undoubtedly gave to this message, communicated to the jury by his substitute in his closing address, undue weight, and was, under the circumstances, very prejudicial to the rights of the defendant. And it is a well-established rule that it is error sufficient to reverse a judgment for the court to suffer counsel, against the objection of the defendant, to state facts not in the evidence or pertinent to the issue, and the evidence of which would have been ruled out. See 2 Enc. Pl. & Prac. p. 727; Kennedy v. Com., 77 Ky., 360.
One of the grounds relied on in the motion for a new trial made in the court below is that the court erred to-the prejudice of the accused in refusing to sustain his motion to fill up the jury box by persons whose names were drawn from the jury wheel, instead of directing the sheriff to summon a special venire after the original panel of jurors had been exhausted. This motion was supplemented by the affidavits of quite a number of persons, who stated, in substance, that four of the jury who tried the defendant had formed and expressed the opinion that he was guilty before they [372] were accepted on the panel; and that this information was not communicated to the defendant until after the termination of the trial. While all of the statements contained in these affidavits are denied by the accused jurors, and may have no just foundation, yet the fact that so many persons could be found to make affidavits so circumstantial in their detail of facts on this point illustrates the great importance, in a case of this character, of using every precaution to secure discreet and' impartial citizens to act as jurors. Under section 281 of the Criminal Code, the decision of the trial court upon the motion for a new trial is not subject to exceptions, and consequently it will be unnecessary for us to further consider this question.'
'Numerous other errors are complained of, but, as they are not likely to occur again, are not considered in this opinion. But, for error pointed out and discussed, the judgment of the trial court is reversed, and the case remanded for a new trial consistent with this opinion.