Opinion op the Court by
Judge Carroll
Affirming.
Under an indictment charging him with the murder of his wife, hy administering to her strychnia, a deadly poison, committed in manner and form as follows: viz: “That he did unlawfully, willfully, maliciously, feloniously, and of his malice aforethought mix with other substances, to wit, flour and coal soot, and then and there did place same in capsules, and, the said capsules containing said poison [670] as aforesaid, did then and there unlawfully, willfully, maliciously, feloniously, and of his malice aforethought put and place in the room and house of the said Mary Levering, intending that the. said Mary Levering should take and swallow said poison so mixed and placed in said capsules as aforesaid, by mistaking the same for salutary medicine, and the grand jurors aforesaid say that the said Mary Levering, who' had theretofore been induced by said defendant to believe said capsules then containing said poison contained healthful and beneficial substances, and not then knowing that said capsules contained a deadly poison, but believing them to contain healthful and salutary substances, did take and swallow said capsules containing said deadly poison, by reason of which she became sick, and did then and there presently die” — the appellant was put upon his trial, and by the verdict of a jury found guilty of murder, and his punishment fixed at imprisonment in the state penitentiary for life. A reversal is asked (1) because there was no evidence conducing to show that appellant committed the crime charged; (2) because the court erred to his prejudice in admitting incompetent testimony; and (3) for alleged error in instructing the jury upon the subject of accomplices.
The theory of the defense is that Mirs. Levering, who was somewhat addicted to the liquor habit, and occasionally took morphine, died from strychnia poisoning, and took the strychnia with suicidal intent, and this, theory finds some support in statements, reputed to' be made by her more than once, that she intended to take her life, and in a note that was found lying on the dresser in the room where she was found dead, in which she said: “My dear husband: [671] You will be somewat surprised when you shall receive this letter. My soul will be in Heaven, this being my second attempt to end my life to-day. Tell my brother and sister good-bye for me. I have given you everything I possessed, to be yours forever. Don’t permit any services in church over my body. Pray for me at grave, and meet me in Heaven. Your wife, Mary. ’ ’ But the authenticity of this note is strongly attacked by the commonwealth,. and there is some evidence conducing to show that it was prepared by Levering, although the evidence as to whether it was or not is very unsatisfactory. As also tending to show that she did not take the- medicine with suicidal intent is the fact that shortly before taking it she was in a cheerful humor, and her condition when found indicated that she did not expect to kill herself. It is earnestly pressed upon our attention by counsel for the appellant that there was no -evidence conducing to show (1) that appellant administered to or caused his wife to take medicine that he knew was a deadly poison, but that she believed to- be a healthful compound; (2) that his wife died from the effects of strychnia poison. It cannot be doubted that unless the commonwealth introduced some competent evidence, direct or circumstantial, tending to show that appellant willfully and maliciously administered or caused, in the manner stated, his wife to take strychnia poison, and that she took the same believing it to be healthful or salutary medicine, and died from the effects of it, the jury should have been directed to find appellant not guilty, because it is indispensable to- sustain a conviction that both- of these things should1 exist. Commonwealth v. Murphy, 109 S. W. 353, 33 Ky. Law Rep. 141. But it must also [672] be kept in mind that in criminal cases this court is not authorized to reverse the judgment of the lower court upon the ground that the verdict is flagrantly against the evidence, or not supported by sufficient evidence. ’We are restricted to the single inquiry whether or not there was any evidence before the jury conducing to show the guilt of the accused. Vowells v. Commonwealth, 83 Ky. 193; Patterson v. Commonwealth, 86 Ky. 313, 5 S. W. 387; Green v. Commonwealth, 83 S. W. 638, 26 Ky. Law Rep. 1221; Martin v. Commonwealth, 106 S. W. 863, 32 Ky. Law Rep. 657.
For the purpose of determining whether or not there was any evidence to support the propositions necessary to sustain a conviction we will proceed to examine with some care the testimony. The appellant and the deceased were married in 1901. She died on August 15, 1905'; but. the indictment was not returned until May, 1907. The deceased was the fourth wife of appellant, and owned property estimated to be worth between $10,000 and $15,000. No children were born of the marriage, nor did the deceased have any children by her former marriage with a man named Conn. There was evidence for the accused that Levering was kind to his1 wife, and that the relations between them- were agreeable. After her death a paper purporting to her last will was produced by the appellant, in which he was made the sole beneficiary of the property. The probate óf this alleged will was resisted by the relatives of the deceased, and after a contest over its validity in the Shelby circuit court, the paper was rejected. From the judgment rejecting the paper, an appeal was prosecuted to this court., and the judgment of the lower court [673] was affirmed in Levering v. Russell, 100 S. W. 840, 30 Ky. Law Rep. 1185. Soon after the decision by this court, the indictment was found, and it seems probable that criminal action was induced by the result of the controversy over the will and the subsequent disclosures made by witnesses, whose testimony will be hereafter noticed. That the paper purporting to be a will was a forgery there is no room to doubt; and it is the contention of the commonwealth that the appellant accomplished the death of his wife for the purpose of procuring her estate. The home of appellant and his wife was in Shelby county, Ky., where they lived on a farm owned by her. But appellant owned a house in Louisville, in which, although rented out, he retained two furnished rooms, at which they lived when in the city. The deceased had been occupying these rooms for some weeks before her death, and on the Sunday before she died appellant came in from the country to see her, but she did not return to her Shelby county home with him, desiring to remain in Louisville a few days longer. On the Thursday morning following appellant drove into Louisville' in his buggy, going first to the tome of Annie Gray, and from there to the house in which his¡ wife was living arriving at the latter place about 9 o’clock in the morning. When he went into the room he found her lying on the bed dead. He immediately went out on the street, and the first person he saw was a Dr. Wilhoit, whom he accosted with the request that he accompany him into the house. This the doctor did, and upon making a hasty examination of the deceased, pronounced her dead, and telephoned for the coroner. The coroner, who came at once in response to the message, testifies that he examined [674] the body, and made a very critical examination of the person, but did not deem it necessary to use a knife in the case. Asked if he could state the cause of her death, as well as other relevant questions in connection therewith, he answered, in substance: “I will tell you — merely give you my conclusion. She was lying on her back, her arms slightly flexed across her chest; limbs drawn in; her feet slightly turned out; her jaws were tightly clenched; peculiar facial expression; very pale; 'the back of her body rather bluish; and thought she had died from some convulsive poison, and the further evidence led me to believe that she had died from strychnia. I found her body in the sleeping room; lamp burning;*the blind was down; she was dressed in her gown. I found powder on the table in a pasteboard box. The powder was very bitter. I felt sure it was strychnia; I am familiar with it. I put it in my pocket, took it down to the coroner’s office, and kept it there a great many months, but did not have it analyzed; made no analysis of anything that was found in her stomach. ” Asked if he could state if the powder he found in the box was strychnia, he said “I cannot mathematically swear that it was, but from long experience with strychnia — it had a crystal appearance and an intensely bitter taste — it was so perfectly evident to my mind, that I did not analyze it further.”
We think the evidence of the coroner tended to show that the deceased died from the effects of strychnia poisoning. True it is not as full clear, or satisfactory as it might have been if a post mortem examination'had been held, or an analysis of the contents of the stomach made; but it furnished, in connection with1 other testimony, sufficient evidence of the cause [675] of her death to warrant the jury in believing that strychnia poison caused it. At any rate, it cannot fairly be said there was no evidence that the deceased died from the effects of strychnia poisoning, because the coroner, who was a practicing physician, gave it as his opinion that this poison did produce her death; and it was for tire jury to give such weight to his evidence as in their discretion and judgment it seemed to them entitled to. When there is any evidence, direct or circumstantial, to establish the corpus delicti, it is for the jury to pass upon its sufficiency. As under the instructions the jury could not have found the accused guilty unless they believed, beyond a reasonable doubt, that the death of M¡rs. Levering was produced by strychnia poisoning, they must have reached the conclusion that she died from the effects of such poison administered by her husband.'
\_The next question is, Was there any evidence to show that appellant caused his wife to take this poison under the belief that it was- a beneficial medicine ? Upon this point we find the following: In July, 1905, C. A. Dralle, a druggist in Louisville, sold to Mrs. Levering 60 grains of strychnia for the purpose of killing rats, and there is evidence by Annie Gray, the principal witness for the commonwealth, that Mrs. Levering sent this poison in the mail, addressed to her husband at his post office in Shelby county; that a few days after this Levering came to Louisville, went into the house of Annie Gray, and had with him a bottle of strychnia that Ms wife had bought and sent to him; that this strychnia he mixed with soot and put in capsules, and filled other capsules with flour and soot, at the same time remarking, with reference to his wife, “I am going to kill the--[676] There is also evidence by the same witness that he gave these capsules containing the strychnia and soot to his wife, and told her that they were pills from Dr. Brenan, and she must take them, as they would do her good. It is also testified to by Annie Gray that on the evening of the night that Mrs. Levering died, she saw her take three of the identical capsules that Levering had prepared for her, getting them out of the box in which he had put them at her house. This witness also states that when Levering came to Louisville on the morning his wife was found dead, he first went to her house, and asked if his wife was-there, and when she answered in the negative, he said, “The---is dead,” and then left her house and drove to the house in which his wife was lying dead.
The evidence of this witness was in itself Sufficient to establish the criminal agency. She testified to every fact essential to connect Levering with the death of his wife. But it is strongly insisted that she Was- an accomplice, andi therefore a conviction could not be had upon her testimony alone. So that the important question to be determined in this connection is, Was Annie Gray an accomplice, within the legal acceptation of that word? She saw Levering put strychnia in the capsules; she knew that he intended to give them to his wife for the purpose of killing her. And when she saw Mrs. Levering take these capsules- containing strychnia, and knew they would kill her, sbé did not advise or request her not to take them, nor did she inform her what the capsules contained, or take any steps whatever to save her life. It thus appears that this witness passively approved1 of, and silently consented to, this horrible crime, and yet she did not procure, advise, encourage, [677] aid or assist its commission, and so we are clearly of the opinion that she was not an accomplice. The word's “accomplice,” “accessory,” and “aider and abettor” are often used indiscriminately and interchangeably by courts and text-book writers on criminal law. But an “accomplice” may be one of the principal actors, or an aider and abettor, or an accessory before the fact. The word includes in its meaning all persons who participate in the commission of a crime, whether they so participate as principals, aiders, and abettors, or accessories before the fact. Miller v. Commonwealth, 78 Ky. 15, 39 Am. Rep. 194; Elliott on Evidence, section 2785; 1 Russell on Crimes, section 26. It is commonly applied, as in the Code of Criminal Practice, to a witness, and is not so often used in describing a person accused of crime. Usually when persons are spoken of by courts in connection with the commission of an offense, they are mentioned as principals, accessories, or aiders or abettors, although the word “accomplice” would be equally as appropriate. But if, in the course of the trial either of these persons is put upon the witness stand, and a question comes up as to the necessity of corroborating his testimony, he will be spoken of as an accomplice, although he may in fact be a joint principal, or an accessory, or an aider and abettor. And so it is that the Criminal Code of Practice (section 241), following the precedents in this respect, speaks of an accomplice as a witness. But to constitute one either a priDcipal, an accessory, an aider and abettor, or an accomplice he must do ■something; must take some part; must perform some act, or owe some duty to the person in danger that makes it incumbent upon him to prevent the [678] commission of the crime. Mere presence or acquiescence in, or silent consent to, is not, in the absence of a duty to act, legally sufficient, however reprehensible it may be, to constitute one a principal, or an accessory, or an aider and abettor, or an accomplice;, and,Annie Gray did not occupy towards Mtrs. Levering such relation as would make her failure to endeavor to save her life evidence of guilty agency in the perpetration of the crime. Wharton on Criminal Law, section 211; Bishop on Criminal Procedure, section 1159; Plummer v. Commonwealth, 1 Bush, 76;, Butler v. Commonwealth, 2 Duv. 435; True v. Commonwealth, 90 Ky. 651, 14 S. W. 684; Omer v. Commonwealth, 95 Ky. 353, 25 S. W. 594; Cross v. People, 47 Ill. 152, 95 Am. Dec. 474; White v. People, 139 Ill. 143, 28 N. E. 1083, 32 Am. St. Rep. 196; State v. Hildreth, 31 N. C. 440, 51 Am. Dec. 369. The test, generally applied to determine whether or not onen is an accomplice, is, Could the person so charged be-convicted as a principal, or an accessory before the-fact, or an aider and abettor upon the evidence? If a judgment of conviction could be sustained, then the-person may be said to be an accomplice; but, unless, a judgment of conviction could be had, he is not an accomplice. Bass v. State, 37 Ala. 469; Commonwealth v. Wood, 11 Gray (Mass.) 93; 1 Am. & Eng. Ency. of L., p. 391; 12 Cyc. p. 187; Carroll v. State, 45 Ark. 539.
It shoul further be stated that, although Annie-Gray knew this crime had been committed, she concealed from the officers of the law, and other persons, her knowledge for more than two years, and therefore the argument is made that she was an accessory after the fact, and consequently an accomplice. ' This [679] witness assigned as a reason for her failure to sooner give information of the guilt of Levering that she was under his influence and control, and Was apprehensive that he would do her violence, as he had often so threatened to do in the event she disclosed his guilt. She also testified that she had been advised that a disclosure would involve her husband, and! that, overcome by fear of personal violence and danger to her husband, she refrained from giving the information. But as the mere failure to give information of a crime will not, in the absence of other acts of comfort or assistance, constitute one an accessory after the fact, we are clearly of the opinion that under the circumstances of this case Annie Gray was not an accessory after the fact. But, passing this, we are further of the opinion that an accessory after the fact is not an accomplice within the meaning of the Code provision, providing that: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect- the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show that the offense was committed and the circumstances thereof.”
-Under the common law an accessory after the fact Was guilty of a felony, and was subject to the same punishment as the principal. 4 Blackstone, p. 439. And in some jurisdictions where the common-law rule has not been changed by statute, and in others where it has, the courts have held that an accessory after the fact is an accomplice in the sense that his -testimony must be corroborated. See cases collected in note on page 763, 5 Am. & Eng. Ann. Cases. But the prevailing and better practice, and the one we [680] approve, is that an accessory after the fact is not an. accomplice requiring corroboration of his evidence. Under Ky. St. section 1129 (Russell’s St. section 3156): “Accessories after the fact, not otherwise punished, shall be guilty of high misdemeanor, and fined and imprisoned at the discretion of the jury, and may be tried, though the principals be not taken or tried. ’ ’ It will be noticed that the statute does not define an accessory after the fact, but according to the accepted definition an accessory after the fact is. one “who knowing a felony to have been committed, harbors the felon or renders him any other assistance to elude punishment. And “one is not such an accessory who merely neglects to make known to the authorities that a felony has been committed, or forbears to arrest the felon. ’ ’ Bishop on Criminal Law, sections 693, 694; 1 Wharton on Criminal Law, section 241; 1 Am. & Eng. Ency. of Law, p. 267. Whereas, to constitute one an accomplice, it is necessary that, he should voluntarily unite with the principal offender-in the commission of the crime; in other words, participate in its commission in some manner or other. Wharton’s Criminal Evidence, section 440; People v. Smith, 28 Hun (N. Y) 626; Rice on Crim. Ev. section 319; State v. Phillips, 18 S. L. 1, 98 N. W. 171, 5 Am. & Eng. Ann. Cas. p. 760. It is therefore clear that an accessory after the fact is not an accomplice.
Applying the principles above set forth, and which are generally recognized and approved, it is manifest that Annie Gray could not be convicted, either as; principal, aider and abettor, or an accessory before-the fact, and hence she was not an accomplice1. The-essential things necessary to constitute her one of these offenders are lacking. Having found that [681] Annie Gray was not an accomplice, it was not necessary that there should he auy corroboration of her evidence, within the meaning of section 241, Code Or. Prac., and this conclusion disposes of the principal assignment of error, based upon the theory that, as Annie Gray was an accomplice, there was not sufficient corroboration of her evidence. The trial court treated Annie Gray as an accomplice, and gave to the jury an instruction in the manner and form required by section 241 of the Code; but this, in our view of the case, was prejudicial to the commonwealth, and not the accused, as it plaeed upon the commonwealth the burden of corroborating her testimony by other evidence tending to connect the accused with the commission of the offense, when no other evidence was necessary.
But in addition to the testimony of this witness, there is other evidence conducing to show the guilt of the accused. The evidence is very satisfactory that the will offered for probate, and in which his wife made Levering her sole devisee, was a forgery and a fraud, concocted and perpetrated by him. And the desire upon his part that his wife should die in order that he might obtain her property furnished a motive for the commission1 of the deed. There is evidence that on the morning his wife died, he stated to Lewis Gray, just before leaving his home in Shelby county, to come to Louisville, that he “would bring a dead one home with him.” There is evidence by Joe Cain that when he came to Louisville on the morning his wife was found dead, he went first to the house of Annie Gray, and asked if his wife was in, and when he learned that she was not, he said, “Damn her, I guess she’s a dead1 one,” and1 then got [682] in Ms buggy and went to tbe house where his wife was. This witness also testifies that he saw Levering in tbe house of AnMe Gray filling tbe capsules with strychnia and soot, and beard him say, “I guess when sbe gets this, it will fix her,” and on-the morning that Mrs. Levering was found dead be saw on the! dresser in her room tbe bottle or box that be bad seen Levering have at the bouse of Annie Gray when he was filling tbe capsules. A Mrs, Ratteman testified that a week or a few days before tbe death of Mrs. Levering sbe beard Levering say that, “when she got that stuff, it will fix her.” She did not know who be meant, as be did not mention any name, and was not speaking to her, but tbe subsequent evidence developed that this statement was made in the presence of Annie Gray, and her evidence shows that Levering was referring to Ms wife when be made this remark. Stanley Brown testified that on tbe morning after tbe funeral tbe accused “clapped Ms hands in tbe dimng room, and said he was tbe happiest man in tbe world.”
There are other circumstances pointing to tbe guilt of tbe accused, but we do not deem it necessary to notice them. Tbe principal witnesses, for tbe commonwealth are Vigorously and justly denounced by counsel for tbe appellant, and it must be conceded that their testimony exhibits them as wicked, degraded creatures, and yet they were tbe most confidential friends and intimate associates of Levering. It is also forcibly urged that no man should be deprived of his liberty upon the testimony of such self-confessed falsifiers and villians, but as an all-sufficient answer to this, we say that a jury, chosen and accepted by tbe appellant, saw these witnesses, and beard them [683] tell the story of their own depravity and Levering’s crime in all its shocking details; and, having so seen •and heard, that jury believed what they said, and it is not within our province to declare them unworthy of credit or belief.
We have noticed the alleged errors complained of in the admission of testimony, in the argument of counsel for the commonwealth, and in the remark made by the presiding judge during the trial, but ■do not deem, either of them of sufficient importance to ■extend the opinion in discussing them.
After a careful examination of this record, w;e find no reason for disturbing the judgment, and it must be, and is, affirmed. ]£,