dissenting.
Opinion by Judge O’Rear. overruling petition of appellant for rehearing. March 4, 1904.
The very earnest and able petition for rehearing in this case complains especially that the opinion ignores and is in conflict with a number of previous opinions of this court, as well as conflicts with section 126, Cr. Code, in holding the indictment not bad for duplicity. Commonwealth v. *92Perrigo, 3 Metc. 5; Huff v. Commonwealth, 19 R., 1064, 42 S. W., 907, and Ellis v. Commonwealth, 78 Ky., 130, are cited and relied on. Whether or not the indictment may have been bad for the reason stated, under section 126 of the Criminal Code, does not appear to us to be material in this case. Section 1960 of the statute (Ky. St., 1903) denounces the offenses of setting up, keeping, carrying on, and managing, or assisting therein, a keno bank, faro bank, “or other machine or contrivance used in betting whereby money or other thing may be won or lost.” Section 1961 provides: “An indictment for a. violation of the preceding section may charge the accused in one count with any or all of the offenses mentioned or included therein.” These sections were enacted in their present form April 8, 1893. As to the offenses therein created section 126 of the Criminal Code can not apply. It was certainly competent for the Legislature to provide that two or more offenses might be joined in one indictment. Having so provided subsequent to the enactment of the section of the Code relied on, the provisions of that section are manifestly inapplicable. For the same reason the decisions cited can not be authority against the sufficiency of this indictment. The Commonwealth might have charged in the indictment the commission of all the offenses named in section 1960, and upon proof of any one of them the defendant should have been found guilty. That the circuit court restricted the proof to the inquiry whether the accused conducted a faro bank can not be prejudicial to any legal right of his.
The position that uncontradicted affidavits filed in support of a ground for a new trial become a part of the record, as if the acts therein stated had been recited in the bill of exceptions, is clearly untenable. -The office of the *93bill of exceptions is to make a veritable record of the proceedings in court had upon the trial. It particularly shows the rulings of the trial judge upon the motions and objections to evidence as therein recited. It is confessedly the truth as to what occurred, and is the judge’s certificate of it. If, after the trial, a party by his ex parte affidavit could enlarge the bill so as to incorporate new matter not appearing therein, including the action of. the trial judge thereon, it would be to make the party’s certificate supersede the judge’s. It might as well be allowed that a party by such practice could diminish the bill by showing by his affidavit that what was certified to by the judge did not occur. 'The fact that the affidavit is uncontradicted we deem immaterial. That the bill of exceptions does not contain the matter is the judge’s certificate that it didn’t occur, for his certificate implies that the bill shows all that did occur, and is conclusive except that a bystander’s bill may be made as to evidence. Section 333-340, Civ. Code; Patterson v. Commonwealth, 86 Ky., 313, 9 R., 481, 5 S. W., 387; Id., 99 Ky., 610, 10 R., 167, 5 S. W., 765. The question has been frequently passed upon by this court contrary to appellant’s contention.
It would have been sufficient to say, as to the occurrence when the witness Oder was .on the stand, that appellant did not move to exclude or withdraw the objectmnable statement from the jury. His motion was to discharge the jury. In view of the fact that other witnesses had proven the same fact — that is, that appellant was the dealer in a game of faro at the place and time stated in the indictment — the motion to set aside the swearing of the jury was properly overruled. If appellant had moved to have the remark objected to withdrawn from the jury’s *94consideration it would doubtless have been sustained, and the jury admonished properly to, disregard it. It is not every lapse in the course of a criminal trial that justifies the withdrawal of the case from- the jury. 'There may be instances where the prejudicial effect of an objectionable proceeding is such that it can not be removed from the jury’s mind, and therefore it would be improper to let that jury conclude the case. 'But here the witness Oder denied that he had seen the accused dealing the game of faro, though he was in the room at the time. The effect of this witness’ statement, so far as connecting the accused with the game, was probably nil. The Commonwealth’s attorney, in endeavoring to have him go further, essayed the statement to the court in the hearing of the jury that the witness had in his examination before the grand jury given different evidence. The sole effect of that statement, if testified to by a competent witness, would have been to impeach the witness Oder. However, if there had-been no other evidence of appellant’s guilt, the jury might have inferred that the Commonwealth’s attorney was correctly stating what the witness had said under oath when not confronted by the accused, and that his statements were then true, and from that circumstance alone found that appellant was in fact the dealer in the game. But in fact other witnesses had testified that appellant was the dealer in that game. Therefore there was competent evidence of the main fact before the jury. The trial court at most should have excluded the Commonwealth’s attorney’s statement of what occurred before the grand jury with proper admonition, and proceeded with the trial. But, instead of asking for what he was entitled to, • appellant asked for what he was not entitled to. His motion *95was properly overruled. This conclusion is reached independent of the statement in appellant’s affidavit in support of motion for new trial that the trial judge did exclude the objectionable matter. Nor is it based upon the fact that appellant subsequently testified in his own behalf that he was the dealer in the game, but relied on the claim that it was not faro, but baccarat. What was said in the opinion as to the statements of appellant in his affidavit .and when a witness for himself was to show that by his own admissions in the record his substantial rights had not been prejudiced by the matter complained of.
The petition is overruled.
Chief Justice Burnam dissenting.