(dissenting).
What is now the rule (RCr 9.62, formerly Crim.Code § 241) that a conviction cannot be had on the uncorroborated testimony of an accomplice was at common law merely a “counsel of caution” customarily given by the judge to the jury. It was not binding. The jury was the ultimate judge of the credibility of the witness on whose testimony the prosecution depended.1 But when in the course of the popular political movement that saw most of the states, by statute or constitution, eradicate the trial judge’s traditional function of advising the jury with respect to the weight of the evidence,2 in many jurisdictions, including ours, this cautionary practice was made a fixed rule of law.3 Wigmore suggested, with ample good reason, that the .result is unfortunate, it being “impossible and anachronistic to determine in advance that * * * a given man’s story must be distrusted.” 4 His quotation from Chief Baron Joy, in which the following excerpts appear, is appropriate:
“Why a fixed, unvarying rule should be applied to a subject which admits of such endless variety as the credit of witnesses, seems hardly reconcilable to the principles of reason. * * * The rule applies with equal force to the accomplice who may apprehend but a month’s imprisonment for the most trifling petit larceny, and to him who may reasonably dread death for an atrocious murder. Universal and undiscriminating, the rule levels all distinctions. Where then is the necessity for, or good sense in, such a rule? Why not leave the credit of the accomplice to be dealth with by the jury, subject to such observations upon it from the judge as each particular case may suggest ? * * * That persons whom the interest of the community require, and the principles of sound policy invite to come forward, should not be marked by a rule which has not been deemed necessary in the case of more atrocious offenders not appearing in the character of accomplices, seems to me to be what is required by reason and good sense.”
It seems anomalous that one murderer can convict another on his own testimony, but only if they were not involved in the same murder. The accomplice rule was the exact device by which the top brains of “Murder, Inc.” were able to execute their “contracts” through hired assassins without fear of ap*402prehension and conviction. All the witnesses they left alive were accomplices.
It is my view that the accomplice rule ought to be amended and put back into the form of a precautionary admonition to the effect that if the witness was an accomplice the jurors shall consider that circumstance as bearing on the credibility of his testimony. Contrary to the inference which might be drawn from the majority opinion that this is a legislative problem, the rule now exists only by virtue of RCr 9.62. Hence it is procedural and is the responsibility of this court. But unless and until a majority of the court sees fit to consider modifying it, at the very least reasonable public policy argues against its being given a strict and mechanical construction.
KRS 436.020 abrogates the áccomplice rule when the woman on whom an abortion is performed is the accusing witness. There is, of course, a rule of construction to the effect that by mentioning one thing in a statute the legislature evinces an intention to exclude other things. Again, however, this is but one mechanical rule among many. By equal logic it can be said that in repealing the Code of Criminal Practice in favor of rules to be promulgated by the court the legislature certainly intended to leave to the court the question of whether the testimony of accomplices other than the woman in an abortion case should require corroboration. But this is not .really a matter of specific legislative intent; we all know that the omission of precise matters of application in a statute more often reflects a lack of any “intent” whatever than a conscious purpose to exclude.
Given a reasonable construction, it seems to me that KRS 436.020 expresses a public policy to the effect that an abortionist shall not be allowed to hide behind the accomplice rule. I think it is outrageous that this defendant, who has brought about a woman’s death by performing an illegal abortion upon her person, is now to be set free simply by virtue of a .rule that not only does not represent any fundamental principle, but was of doubtful widsom from its inception —a rule which, in any event, should not and need not be given such a technical application as the majority opinion represents.
STEWART, C. J., concurs in this dissent.
. Wigmore on Evidence (3d ed.), § 2056.
. Id., § 2551.
. Id., § 2056.
. Id., § 2057.