Opinion of the Court by
Judge Thomas
Affirming.
On April 22, 1918, the appellant, Bradley McDaniel, a colored hoy about eighteen years of age, shot and killed Dee Spears, a white man, in the town of Smith’s Grove in Warren County. He was indicted by a specially called grand jury in which he was charged with the crime of murder. The special term of court at which the indictment was found convened on May 14, 1918, and the indictment was found and returned in the forenoon of that day and the trial commenced that afternoon. The defendant was convicted and his punishment fixed at death and to reverse the judgment .pronounced upon that verdict he prosecuted an appeal to this court, and the judgment was reversed solely upon the ground that the court should have granted a continuance of the case after the return of the indictment to such a time as would afford the defendant and his counsel a reasonable opportunity to make preparations for the trial.
The opinion wifi he found under the style of McDaniel v. Commonwealth, 181 Ky. 766, and in it we said:
[610]*610“After a careful consideration of this .record and the aid of oral argument as well as briefs by attorneys representing the Commonwealth and the accused, we have reached the conclusion that the judgment appealed from should be reversed and the defendant granted a new trial, and this, upon the sole ground that the motion for a continuance should have been sustained. ’ ’
Upon a return of the case a second trial resulted in the same verdict, followed by the same judgment, and to reverse it defendant prosecutes this appeal.
On the first appeal as well as on the present one the grounds urged and relied on for a reversal of the judgment are identical, with the exception of one point which will be hereafter noticed. They were and are: (1) that the indictment should have been quashed because the order appointing the jury commissioners who filled the wheel from which the grand jury that found the indictment was drawn was not signed by the judge at the time and not until a subsequent term; (2) that the verdict is not sustained by the evidence; (3) that the court allowed improper testimony to be introduced; (4) that the court failed to admonish the jury concerning the purpose and effect of certain testimony.
In disposing of the first ground upon the former appeal we said in the opinion, supra:
“Passing now to other matters, there appears no reversible error in the ruling of the trial court in reference to the indictment or the manner in which the jury was selected, and so we will turn to the motion and grounds for a continuance.” The ground based upon the insufficiency of the evidence to sustain the verdict was not referred to in that opinion, but because it was presented by the record'and argued upon appeal it must now be determined on this appeal that the question is res judicata if the facts upon the two trials are substantially the same. New Bell Jellico Coal Co. v. Sowders, 162 Ky. 443; Ky. Traction & Terminal Co. v. Downing’s Admr., 159 Ky. 502; M. C. & St. L. Ry. Co. v. Banks, 168 Ky. 579; City of Louisville v. Fidelity & Columbia Trust Co., Extr., etc., 182 Ky. 551; Consolidation Coal Co. v. Bailey, 183 Ky. 204; Thornton v. Durrette, idem, 267, and Cumberland Ry. Co. v. Girdner, 184 Ky. 375. Many other cases will be found referred to in these opinions.
It will be found that the rule does not apply alone to questions which were expressly determined by the former opinion but to all questions which were presented and [611]*611which might have been determined but not referred to in the opinion. Thus in the Bailey case, in speaking of the scope of the rnle, we said:
‘ ‘ The rnle is well settled that the opinion of this court on the first appeal of the case is the law of that case upon all subsequent appeals where the facts are substantially the same, not only as to errors relied upon for reversal upon the first appeal, but also, as to all errors relied upon and not noticed in the opinion, all of which appear in the record on the first appeal and which might have been but were not relied on. Consolidated Coal Co. v. Moore, 179 Ky. 293; N. C. & St. L. Ry. Co. v. Henry, 168 Ky. 455; Dupoyster v. Fort Jefferson Improvement Co., 121 Ky. 518; Ill. Life Ins. Co. v. Wortham, 119 S. W. (Ky.) 802; and Stewart’s Admr. v. L. & N. Ry. Co., 136 Ky. 717.”
In the Thornton case, speaking upon the same point, it is said:
“The judgment of this court on the former appeal being the law of the case, all questions which were then presented or were properly before the court are as conclusively settled, though not referred to in the opinion, as if they were specifically mentioned and considered.”
The rule applies with equal force in criminal cases as it does in civil cases. Slaughter v. Com., 152 Ky. 128; Arnold v. Com., 23 Ky. Law Rep. 182; and Gambrel v. Com., 142 Ky. 839.
In the Slaughter case the defendant was indicted for murder and was convicted, his sentence being fixed at death, and upon his appeal the judgment was reversed solely upon the ground of improper argument by the commonwealth’s attorney in the closing address to the jury. Slaughter v. Com., 149 Ky. 5.
It was contended upon the first appeal of that case that the evidence was insufficient to sustain a conviction for murder, but it was held otherwise, and upon the second appeal the same contention was made, but the opinion held that the question was foreclosed by the first opinion, saying:
“The evidence on the second trial is substantially the same as that heard on the first trial. It is well settled that a decision by this court on a former appeal is the law of the case, and is binding not only on the trial court but this court as well. This rule applies both' in civil and criminal cases.”
[612]*612So that were we inclined to hold that any of the matters complained of upon the first trial which are also found in this record were erroneous we would be prevented by the above rule of practice from considering them upon this appeal. But out of abundant caution arising from the fact of the severity of the punishment, we have concluded to briefly notice the errors relied on, dismissing, however, ground (1), because it was expressly determined in the first opinion to be insufficient.
Taking up ground (2), the record discloses that the killing occurred in the early afternoon in front of the blacksmith shop operated by the deceased. The defendant was in the employ of and worldng for Lester Wright, a white man. In an automobile they went to the shop of the deceased for the purpose of having some harrow teeth sharpened and to have them stocked. Wright went into the shop and while he was there defendant brought in one load of the harrow teeth and was directed by deceased where to lay them, when he returned for the second and last load. In the meantime Wright had gone out of the shop to his machine and had gotten into it when the difficulty commenced. How it commenced and what occurred is thus told by the defendant in his testimony:
“When I got to the shop Mr. Lester gets out and goes into the shop and gets the teeth out, about half of them, and then packed them out, and I asked Mr. Lee where I was to lay them, and he said: ‘Lay them down anywhere, ’ and I goes oh then and lays the others down, and starts out, and Mr.
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Opinion of the Court by
Judge Thomas
Affirming.
On April 22, 1918, the appellant, Bradley McDaniel, a colored hoy about eighteen years of age, shot and killed Dee Spears, a white man, in the town of Smith’s Grove in Warren County. He was indicted by a specially called grand jury in which he was charged with the crime of murder. The special term of court at which the indictment was found convened on May 14, 1918, and the indictment was found and returned in the forenoon of that day and the trial commenced that afternoon. The defendant was convicted and his punishment fixed at death and to reverse the judgment .pronounced upon that verdict he prosecuted an appeal to this court, and the judgment was reversed solely upon the ground that the court should have granted a continuance of the case after the return of the indictment to such a time as would afford the defendant and his counsel a reasonable opportunity to make preparations for the trial.
The opinion wifi he found under the style of McDaniel v. Commonwealth, 181 Ky. 766, and in it we said:
[610]*610“After a careful consideration of this .record and the aid of oral argument as well as briefs by attorneys representing the Commonwealth and the accused, we have reached the conclusion that the judgment appealed from should be reversed and the defendant granted a new trial, and this, upon the sole ground that the motion for a continuance should have been sustained. ’ ’
Upon a return of the case a second trial resulted in the same verdict, followed by the same judgment, and to reverse it defendant prosecutes this appeal.
On the first appeal as well as on the present one the grounds urged and relied on for a reversal of the judgment are identical, with the exception of one point which will be hereafter noticed. They were and are: (1) that the indictment should have been quashed because the order appointing the jury commissioners who filled the wheel from which the grand jury that found the indictment was drawn was not signed by the judge at the time and not until a subsequent term; (2) that the verdict is not sustained by the evidence; (3) that the court allowed improper testimony to be introduced; (4) that the court failed to admonish the jury concerning the purpose and effect of certain testimony.
In disposing of the first ground upon the former appeal we said in the opinion, supra:
“Passing now to other matters, there appears no reversible error in the ruling of the trial court in reference to the indictment or the manner in which the jury was selected, and so we will turn to the motion and grounds for a continuance.” The ground based upon the insufficiency of the evidence to sustain the verdict was not referred to in that opinion, but because it was presented by the record'and argued upon appeal it must now be determined on this appeal that the question is res judicata if the facts upon the two trials are substantially the same. New Bell Jellico Coal Co. v. Sowders, 162 Ky. 443; Ky. Traction & Terminal Co. v. Downing’s Admr., 159 Ky. 502; M. C. & St. L. Ry. Co. v. Banks, 168 Ky. 579; City of Louisville v. Fidelity & Columbia Trust Co., Extr., etc., 182 Ky. 551; Consolidation Coal Co. v. Bailey, 183 Ky. 204; Thornton v. Durrette, idem, 267, and Cumberland Ry. Co. v. Girdner, 184 Ky. 375. Many other cases will be found referred to in these opinions.
It will be found that the rule does not apply alone to questions which were expressly determined by the former opinion but to all questions which were presented and [611]*611which might have been determined but not referred to in the opinion. Thus in the Bailey case, in speaking of the scope of the rnle, we said:
‘ ‘ The rnle is well settled that the opinion of this court on the first appeal of the case is the law of that case upon all subsequent appeals where the facts are substantially the same, not only as to errors relied upon for reversal upon the first appeal, but also, as to all errors relied upon and not noticed in the opinion, all of which appear in the record on the first appeal and which might have been but were not relied on. Consolidated Coal Co. v. Moore, 179 Ky. 293; N. C. & St. L. Ry. Co. v. Henry, 168 Ky. 455; Dupoyster v. Fort Jefferson Improvement Co., 121 Ky. 518; Ill. Life Ins. Co. v. Wortham, 119 S. W. (Ky.) 802; and Stewart’s Admr. v. L. & N. Ry. Co., 136 Ky. 717.”
In the Thornton case, speaking upon the same point, it is said:
“The judgment of this court on the former appeal being the law of the case, all questions which were then presented or were properly before the court are as conclusively settled, though not referred to in the opinion, as if they were specifically mentioned and considered.”
The rule applies with equal force in criminal cases as it does in civil cases. Slaughter v. Com., 152 Ky. 128; Arnold v. Com., 23 Ky. Law Rep. 182; and Gambrel v. Com., 142 Ky. 839.
In the Slaughter case the defendant was indicted for murder and was convicted, his sentence being fixed at death, and upon his appeal the judgment was reversed solely upon the ground of improper argument by the commonwealth’s attorney in the closing address to the jury. Slaughter v. Com., 149 Ky. 5.
It was contended upon the first appeal of that case that the evidence was insufficient to sustain a conviction for murder, but it was held otherwise, and upon the second appeal the same contention was made, but the opinion held that the question was foreclosed by the first opinion, saying:
“The evidence on the second trial is substantially the same as that heard on the first trial. It is well settled that a decision by this court on a former appeal is the law of the case, and is binding not only on the trial court but this court as well. This rule applies both' in civil and criminal cases.”
[612]*612So that were we inclined to hold that any of the matters complained of upon the first trial which are also found in this record were erroneous we would be prevented by the above rule of practice from considering them upon this appeal. But out of abundant caution arising from the fact of the severity of the punishment, we have concluded to briefly notice the errors relied on, dismissing, however, ground (1), because it was expressly determined in the first opinion to be insufficient.
Taking up ground (2), the record discloses that the killing occurred in the early afternoon in front of the blacksmith shop operated by the deceased. The defendant was in the employ of and worldng for Lester Wright, a white man. In an automobile they went to the shop of the deceased for the purpose of having some harrow teeth sharpened and to have them stocked. Wright went into the shop and while he was there defendant brought in one load of the harrow teeth and was directed by deceased where to lay them, when he returned for the second and last load. In the meantime Wright had gone out of the shop to his machine and had gotten into it when the difficulty commenced. How it commenced and what occurred is thus told by the defendant in his testimony:
“When I got to the shop Mr. Lester gets out and goes into the shop and gets the teeth out, about half of them, and then packed them out, and I asked Mr. Lee where I was to lay them, and he said: ‘Lay them down anywhere, ’ and I goes oh then and lays the others down, and starts out, and Mr. Dee says ‘Bradley?’ and I says ‘Sir,’ and he says ‘They tell me you have been beating up that boy of mine-, ’ and I says ‘Not first, he hit me with a rotten potato,’ and I says ‘Mr. Dee, I don’t bother your boy. I attend to my own business,’ and he says, ‘Get out of here,’ and I starts out, and I got off of the pavement down on the street, and he throwed the plank at me, and when he threw the plank I looked back and I was getting close to the car, and he was going to get a 2x4 under an old wagon, and I says, ‘Mr. Dee, don’t do that,’ and he says ‘You God damned son of a bitch, I will break your neck,’ and I pulled my pistol and shot him.”
He then said that he shot five times very rapidly and deceased fell where friends afterwards found him.
Wright, the only other witness who was immediately present, testified that;
[613]*613“When Bradley put the teeth in the car I was sitting in the front seat preparing to start the car, and I told him to get in, and I pulled out in the street and turned around, and drove to the shop, and when I got to the shop I told him to get the teeth and I went in the shop and was talking to Mr. Spears about when he could get the harrow teeth fixed for me and some work he was doing then, and on the first trip Bradley made he asked Mr. Spears where he must put the teeth and he replied ‘anywhere’ there in the shop, and as he came in with the second load I went back to'the oar to start the engine, and he carried the second load in and was returning to the car and as he passed through the door Mr. Spears called to him and asked him what he meant by jumping on his boy and beating him up, and Bradley replied ‘I didn’t jump on your boy and beat him up, the boys Were throwing potatoes at me, and I slapped him,’ and Mr. Spears said ‘You started this fuss with the boy and I can prove it’ and Bradley replied ‘No, sir; Mr. Dee, I don’t bother nobody,’ and he called him a son of a bitch, and said ‘You son of a bitch, don’t you-’ do something, I didn’t hear what it was, and the next thing I knew there was a chunk that hit the steering wheel and bounced back, and I then began to stop' the engine, and it was on a hillside and the emergency wouldn’t work and I had to put it in gear and put the emergency on to keep it from rolling down the hill and about the time I got this done the shooting was all over. Immediately before the shooting, though, I heard him say: ‘Mr. Dee, don’t be, don’t do that,’ and then the shooting began. Q. Did you see Mr. Spears after he got to the door of the shop, leaving the anvil or anything of that kind? A. The last time I saw him he was laying the hammer down and was leaving the anvil as he called him a son of a bitch.”
These were the only witnesses who testified for defendant concerning the facts attending the shooting. On Friday before the Monday upon which the killing occurred, the defendant had twice slapped the eight-year-old boy of deceased at a restaurant in the town, and defendant says that he had been informed by the boy afterwards that the deceased .had threatened to punish him for having slapped the boy and because of this fact defendant, on the Monday in question, put the pistol in his pocket, and he stated in his evidence that he did so for the purpose of preventing deceased or anyone else [614]*614from doing him harm. He, therefore, had the pistol in his pocket when he went to the shop' and had been carrying it according to his testimony throughout the day.
Robert Kirby, a witness for the Commonwealth, testified that he was the manager of the water works of the town and his office was. located just at the rear of the decedent’s shop and in the same building; that he had come out of the shop but a few minutes before he heard the shot. He arose from his stooping position and looked towards the front of the shop’ and saw the automobile and Mr. Wright in it and saw smoke at the rear of the car.
On approaching nearer he saw the body of the deceased lying a few feet from the right hand wheel of the car; that the motor of the car was running and that the defendant was standing about midway of the car near a wagon in front of the shop, and that he saw the butt end of the pistol as the defendant threw it into the car; that he called on defendant to stop after he had started to walk away and asked him why he shot the deceased, receiving the answer: “He called me a son of a bitch. ’ ’
Huston Bishop testified that he saw Wright and the defendant at the time they started with the car to the shop, and after the harrow teeth had been put into the car defendant said: “Wait a minute and I will go with you,” and went back into Wright’s place of business and returned, jumping"upon the rrnming board of the car where he rode to the shop of deceased.
Miss Bessie .Davis was on the sidewalk eighty yards east of the shop. There was nothing to obstruct her view or to prevent her seeing in front of the shop. She says that the defendant had his back to her and that she saw deceased in front of him, but the car .prevented her from seeing what, if anything, he was doing; that she saw nothing in the hands of the deceased nor did he attempt to do anything while the defendant was shooting at him.
Walter Stone testified that he was on the pavement across the street, about ninety-five feet from the scene of the killing, and when he heard the first shot he turned his head and saw the second, third and fourth ones; that he saw the hands of the deceased and that he had nothing in them except a glove on his left hand; that he was when witness first saw him “staggering or stumbling and trying to stand up, it looked like”; and [615]*615that he heard nothing said by either the deceased or the defendant.
Gill Edwards was in the store-room in front of which the witness, Stone, was standing, but it had a glass front. He testified that he saw the shooting after the first shot and that the parties were about ten feet apart; that deceased had nothing in his hands, but appeared to be going towards the defendant. ■
A number of witnesses testified that they arrived at the scene immediately after the shooting and that the deceased had nothing in his hands except a glove, nor did they find anywhere near him or in front of the shop at any place a 2x4 piece of timber as testified to by defendant, and there is no testimony in this record to show that such a piece of timber was in that locality except that of the defendant himself.
In the very recent cases of Little v. Commonwealth, 177 Ky. 24; Daniels v. Commonwealth, 181 Ky. 392; Ratliff v. Commonwealth, 182 Ky. 246; Bingham v. Commonwealth, 183 Ky. 688; Thomas v. Commonwealth, 185 Ky. 226, and Hale v. Commonwealth, 185 Ky. 119, it was held that verdicts in criminal cases will not be set aside on the ground of insufficient evidence to sustain them unless they are ‘ ‘ so flagrantly against the evidence as to make it appear at first blush that the jury was influenced by passion and prejudice.” Under this rule can it be said that the verdict in this case should be set aside?
It will be conceded that the jury are the judges of the facts and it has been held many times, that they are not bound to accept the testimony of any particular witness to the exclusion of that given by others. In this case none of the witnesses who saw any part of the difficulty testify to any danger which deceased was able or about to inflict upon defendant that would authorize him to take the life of deceased in order to prevent it, except the defendant himself. It is true that the witness, Wright, heard insulting language from the deceased and saw the chunk which deceased is alleged to have thrown after it struck the automobile, but he saw nothing of the situation of the parties at the time of or after the beginning of the shooting. The defendant is contradicted by all of the witnesses of the Commonwealth who saw any part of the difficulty with reference to the deceased attempting to procure a scantling after he had thrown the chunk.
[616]*616The defendant himself shows that he was not only prepared but intended to accept the first opportunity to use his pistol.
From this testimony and these circumstances, how can we say that the jury was not authorized to conclude that defendant harbored malice towards the deceased because of the supposed threats which he had heard and that he then and there determined to wreak vengeance upon the deceased upon the slightest pretext? While such a conclusion is not clearly established still it might appropriately be drawn from the testimony in the case; and under the rule, supra, even were this question now an open one, we are not prepared to say that the verdict is flagrantly against the evidence.
Turning now to grounds (3) and (4), the improper testimony complained of is the contradiction of the witness, Wright, in two particulars, they being (a) that the Commonwealth was permitted to show in rebuttal after proper foundation laid that the witness, Wright, on Sunday before the killing said “that Clarence Walker ought to have his head or face slapped off for interfering with McDaniel on Friday evening when he slapped the Spears boy”; and (b), to also prove in rebuttal that Wright, in the city of Bowling Green, upon the same afternoon of the killing said that he picked up the piece of wood which was in his automobile when the trip to Bowling Green was made and put it in the machine, when he had testified' that the piece of wood fell in the machine jusi; before the beginning of the shooting.
The same testimony in subdivision (a) was heard upon the first trial and complaint was made of it at that time as well as the failure of the court to admonish the jury to consider it for the purpose of affecting the credibility of the witness, Wright. But the failure of the court to admonish the jury concerning the testimony in subdivision (b) as well as the introduction of that testimony appeared for the first time upon this trial.
Under the res judicata rule, supra, the error, if any, with reference to the testimony in subdivision (a) as well as the failure of the court to admonish the jury concerning it, cannot be considered by us on this appeal, since it was at least impliedly determined on the first appeal that that objection to the verdict did not constitute an error, or if so, only an immaterial one. There was no objection in any form to the complained of tes[617]*617timony in subdivision (b) nor was the court asked in either instance to admonish the jury concerning its purpose.
This court has held that it was error not to admonish or instruct the jury on the purpose for which a certain character of contradictory evidence may be considered. The cases so holding are: Feuston v. Commonwealth, 91 Ky. 230; Collins v. Commonwealth, 15 Ky. Law Rep. 691; Gills v. Commonwealth, 18 Ky. Law Rep. 560; Jones v. Commonwealth, 20 Ky. Law Rep. 355; Ashcraft v. Commonwealth, 24 Ky. Law Rep. 488; Fuqua v. Commonwealth, idem, 2204; Alfred v. Commonwealth, 26 Ky. Law Rep. 153; Mullins v. Commonwealth, 23 Ky. Law Rep. 2433; Sloan v. Commonwealth, 33 Ky. Law Rep. 266; Redden v. Commonwealth, 140 Ky. 94; Ruark v. Commonwealth, 150 Ky. 47; Johnson v. Commonwealth, 170 Ky. 766; Hayes v. Commonwealth, 171 Ky. 291; Renaker v. Commonwealth, 172 Ky. 712; and Day v. Commonwealth, 173 Ky. 269. In all of these cases it appears in the opinions that the defendant complained of the testimony, the effect and purpose of which he insisted that the jury should be admonished, either by way of objection to its introduction or by moving to exclude it or by specifically asking for the admonishing instruction, except in the Mullins, Fuqua and Redden cases.
We have examined the records of the Fuqua and Redden cases, and it appears that the testimony in the latter was objected to, and in the former a motion was made to exclude it from the jury.
The transcript of the testimony in the Mullins case was for some purpose sent to the lower court and we have not had an opportunity to examine it. So that it is fair to presume that the opinion in the latter case holding it to be prejudicial error to fail to give the admonishing instruction was based upon some objection in some form made by the defendant on the trial.
In the case of Oshsner v. Commonwealth, 128 Ky. 761, this court held that:
“An admonition or instruction limiting the effect of testimony is not within the definition of instruction as used in that section of the code” (25), and it was held that they need not be in writing nor were they .included in the rule requiring the court in criminal trials to give to the jury the whole law of the case. That opinion further held, that for a defendant to take advantage of [618]*618the failure of the court to admonish the jury he must in some form call the attention of the court to the alleged error, saying:
‘ ‘ If the trial court’s attention were called at the time to what is frequently a mere omission, it would have been corrected. To allow reversals for such lapses is to put a premium upon sharpness, rather than tend to the just and fair administration of the law. The failure of the accused or his counsel to have an exception where one is necessary in order' to present the question for review on appeal is deemed in law, as it evidently is in fact, a waiver of the question.”
In the Johnson case it was held that in order for the defendant to avail himself of the error he need not expressly ask for the admonition, but if he objects to the testimony or moves to exclude it, it will be sufficient.
The other cases following it hold to the same requirement on the part of the defendant, and further, that unless he calls the attention of the court, in some one or other of those methods, to the alleged error, he can not avail himself of it even though it should be determined that the error was prejudicial. But in the Johnson, Plaves, Day and Renaker cases, it was further held that the judgment will not be reversed although the court’s attention may have in some one of the methods heretofore pointed out, been called to- it and failed to give the admonition, unless the error under the circumstances is plainly prejudicial to the substantial rights of the defendant.
We cannot, therefore, consider the alleged error growing out of the contradiction of the witness, Wright, in subdivision (b) concerning how the chunk got into the automobile, since no objection was made to the testimony nor any motion made to exclude it, nor was the court asked to admonish the jury concerning it. We do not hold, however, that the error, if it could be considered, is of such a nature as to substantially prejudice the rights of defendant.
We realize that defendant has received the supreme penalty of the law and for that reason we have given the case close scrutiny. While the evidence upon the issue of his guilt of the crime of murder is not as satisfactory as- it might have been, nor the verdict such as we might have rendered had we been on the jury, yet these circumstances raise questions more properly presentable to the Executive Department for a commuta[619]*619tion of the sentence than to this conrt on appeal for a reversal of the judgment, since we are not authorized to set aside the firmly fixed and established rules of law because the verdict of a jury is not one which we would have returned as a juror.
Perceiving no error prejudicial to the substantial rights of the defendant, the judgment is affirmed.
Whole court sitting. Judge Sampson dissenting.