(dissenting). Appellant was indicted for burning thé barn of S. L. Van Meter. The barn was found afire about 1 o’clock at night under-circumstances indicating that it had been set afire. There was no direct evidence connecting the defendant with' the commission of the crime. . The evidence against hiin was wholly circumstantial. The Commonwealth showed that at the instigation, of Yan Meter appellant had been evicted from the house of Ruark in February and that he had then vowed vengeance against them both, declaring that he would get even with them and that they would regret it. He then shipped his goods away from Lexington under an assumed name, and when found in Cincinnati gave an assumed name, denying his indentity. He also claimed that he had not been back to Kentucky since he left there, after his eviction. A few weeks before Yan Meter’s barn burned Ruark’s house burned, the circumstances pointing to its being set afire, .the *376fire occuring about the same time at night as the burning of the barn. There was proof that the prisoner was seen in the neighborhood on the morning the barn burned, and when he was told what he was arrested for in Cincinnati, he said in effect: “Would you not burn anybody’s barn, too, who would set you out in the road in the middle of the winter?” The question is on these facts, whether the burning of Ruark’s house was competent to be proved by the Commonwealth on the trial.
The rule that the commission of other crimes may not be shown is subject to some well-defined exceptions. When the motive of the defendant is material, any fact throwing light upon that question may be shown, and when two crimes are the result of the same motive, or part of the same plan or design, both may be proven. In other words, all that the defendant did in execution of the one design, where that design is a material fact of the case, may be shown, although it involved the commission of other offenses than that for which he is on trial. Proof of the commission of other offenses is also sometimes admitted, to rebut the presumption of accident. Fires occur mysteriously. Every midnight fire is not of incendiary origin. Any fact which reasonably tended to show that the burning of Van Meter’s barn was not accidental, but the work of an incendiary, or which tended to connect the defendant with the burning, was competent. There are a great many authorities illustrating these conclusions. Thus where a prisoner was charged with the murder of her child by poison and the defense was that the taking of the poison was accidental,, evidence was admitted to show that two other children of the prisoner and a lodger in her house had died from the same poison, within a year previous to the death of the child, (Reg. v. Cotton, 12 Cox’s Cr. Cas., 400); and where the prisoner was charged with suffocating her infant child in bed, evi*377deuce was admitted that she had had. four other children who had died at early ages by ■ causes not shown. Reg. v. Roden, 12 Cox’s Cr. Cas., 630. So, on trial for infanticide, a confession that the women had before had a child in the same way, and had put it away, was admitted. State v. Shuford, 69 N. C. 486. In Rex v. Bailey, 2 Cox, Cr. 311, the fire had originated near the kitchen where the prisoner stayed as a servant. Evidence was offered of two fires occurring shortly before in other parts of the house, though no connection of the prisoner with these was shown. The evidence was held clearly competent. In that case the following precedent is cited: On the trial of Donellan for the murder of another by administering poison to him, evidence was allowed that the deceased was in the habit of fishing under a certain tree which hung over a deep and dangerous brook, and that this tree had been sawn almost in two, by some unknown person. In State v. Thompson, 97 N. C. 496, 1 S. E. 921; Commonwealth v. McCarthy, 119 Mass. 355; Kramer v. Commonwealth, 87 Pa. 299, all burning cases, where the proof of the prior burning was no more connected with the offense charged than with the one we have before us, the evidence was admitted. The rule is that where several felonies are connected together as- a part of one common scheme and all tend to a common end, they may be given in evidence. People v. Stout, 4 Parker, Cr. R. (N. Y.) 71; 1 Wigmore on Evidence, §304; 1 Jones on Evidence, §144.
In 4 Elliott on Evidence, §2720, the rule is thus-stated: “Generally speaking, it may be said that evidence of other crimes is admissible for the purpose of showing — when it fairly tends to do so — motive, intent, the absence of mistake or accident, common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identity of the *378person charged with the commission of the crime on trial. Bnt the particulars of a collateral crime should not ordinarily be gone into, further than they are relevant to the purpose for which the evidence is competent.” See, also, State v. Molineux (N. Y.) 61 N. E. 286, 62 L. R. A. 193, and notes; People v. Seaman (Mich.) 65 N. W. 203, 61 Am. St. Rep. 326.
In O’Brien v. Commonwealth, 89 Ky. 367, 11 Ky. L. R., 534; 12 S. W. 473, this court thus laid down the rule: “Necessarily, where the commission of crime can be shown only by proof of circumstances, the evidence should be allowed to take a wide range, otherwise the guilty would often go unpunished. It is true, there must be some connection between the fact to be proved and the circumstances offered in the support of it, yet any fact which is necessary to introduce or explain another, or which affords an opportunity for any transaction which is in issue, or shows facilities or motives for the commission of the crime, may be proven. Even evidence tending to prove a distinct offense is, therefore admissible, if it shows facilities or motives for the commisson of the one in question. The purpose is to weave a net about the guilty, and often can no more be done by proof of a single circumstance than the building of a house with a single brick.” This was approved in the recent cases of O ’Brien v. Commonwealth, 74 S. W. 666, 24 Ky. Law Rep. 2513, and Bess v. Commonwealth, 116 Ky. 927, 77 S. W. 349, 25 Ky. Law Rep. 1091. The threat of the prisoner was against both Euark and Van Meter. His hostility was directed to both of them. His criminal design which he had in mind was to get even with both of them. If the Commonwealth is allowed to prove only the burning of Van Meter’s barn it will not make out that the defendant carried out his threat. For all that would then appear the jury might be left in doubt whether he had carried out his threat as to Van Meter, there being no evidence that he had car*379ried it out as to Ruark. It being admitted that he had made the threat, proof of the different steps that he had taken in executing the threat was competent to throw light upon his motive in being in the vicinity of the barn on the morning when it burned. If he had already burned Ruark’s house, in execution of the threat, it was at least some grounds for inference when Van Meter’s barn burned and he was in the neighborhood without any business there,- that he was there for the purpose of carrying out the threat that he had made, and which he had already carried out in part by burning Ruark’s house. The proof also tended to show that Van Meter’s barn did not burn by accident. If his threat had been in so many words that he would burn the house and the barn, would it be maintained that proof that he had already burned the house would not be admissible in connection with the other circumstances proved here, to show that he had burned the barn? If this was a civil case and Van Meter was suing appellant for damages for burning his barn, would it be maintained that the proof of Iris one threat to bum both houses and the partial execution of that threat by the burning of one of the houses, ’ would not be competent evidence against him on the facts shown?
/'there was sufficient evidence that Ruark’s house was set on fire by an incendiary, to go to the, jury. The fire occurred in the part of the house which the prisoner occupied and with which he was therefore familiar. The way in which the house and barn were fired afforded a reasonable inference that they were the work of the same hand. But if there is any doubt about this, the defendant cannot complain, for on his objection the Commonwealth was required to limit its evidence to that above indicated. The opinion of the court proceéds on the broad ground that evidence that he had committed the previous offense is incom*380petent. In so holding, the court overlooks the fact that the two fires were set in execution of one threat, and pursuant to one plan. All of the cáses cited-in the opinion relate to independent offenses which are Yholly disconnected. Not a single authority cited in the opinion touches the principle upon which the circuit court proceeded in admitting the evidence. To say that the evidence was incompetent because the defendant was reduced to the dilemma of saying nothing as to the burning of Ruark’s house, or of attempting to disprove his guilt of that offense, is to say that under no circumstances would the evidence of the commission of another offense be competent, for wherever proof of the commision of another offense is introduced, the defendant is reduced to this dilemma, and that the evidence may be admitted for the purposes indicated, is conceded by all text-writers on evidence. If the defendant is taken by surprise by the evidence his remedy is, as in any other cases of surprise. He should ask for time to meet it.
The court certainly does not mean to commit itself to the doctrine that proof of the commission of other offenses is only competent to show the guilty knowledge of the defendant, or the intent with which he committed the act charged. No text-writer so limits the doctrine. It is-true that if the defendant burned Van Meter’s barn at all, the intent to commit the crime of arson cannot be denied, but the evidence offered was competent to show the intent which induced his presence in the neighborhood at the time of the burning of the barn, and to show that the burning of the barn was not accidental. ' The evidence served to connect the defendant with the burning. Circumstantial evidence is not rejected if it fails to prove a fact absolutely. It is admitted if it reasonably tends to prove it. The common sense of the jury is the reason that our law prefers a jury trial. It proceeds upon the idea that the jury have *381sufficient intelligence to weigh, the circumstances, and draw proper conclusions. The burning of the two houses was not a mere co-incidence. The circumstances show a direct and logical connection between them.
I therefore dissent from the opinion of the court.