I feel compelled to dissent from so much of the majority opinion as holds that there was a compliance with section 241 of the Criminal Code of Practice when the court admonished the jury in the language thereof but did not give the usual accomplice instruction.
This court has held in a long line of decisions that it is reversible error to omit to instruct under section 241 unless the testimony of the accomplice is overwhelmingly corroborated by other testimony, or unless the accomplice's testimony relates to collateral or unimportant facts. Hendrickson v. Com., 235 Ky. 5, 29 S.W.2d 646; Davis v. Com., 256 Ky. 423,76 S.W.2d 259. The common sense reason that a mere admonition does not suffice is because the spoken word from the bench does not carry the weight of a written instruction which the jury takes to their room upon retiring to reach a verdict.
Furthermore, the Legislature in enacting sections 241 and 242 of the Criminal Code of Practice has declared that the conviction of a defendant cannot be had upon the uncorroborated testimony of an accomplice and that if it be not corroborated "the court shall instruct the jury to render a verdict of acquittal, by which instruction they are bound." This recognizes the danger involved. This is of the same character as the requirement of section 238, that if the defendant be not proven guilty beyond a reasonable doubt, he is entitled to an acquittal. I suppose that the majority of the court would quickly agree that a failure to give an instruction on reasonable doubt is a reversible error, and that a verbal admonition covering the point would be wholly insufficient.
The same is true as to the defendant waiving such an instruction or the form thereof by remaining silent. The weight and effect to be given certain testimony, or the purpose for which it is admitted, or that it shall be disregarded because incompetent, concerning each of which an oral admonition should be given, are far different from the matter of sufficiency of proof of guilt. So, too, is the conduct of a jury during adjournment, concerning which the Code provides they shall be "admonished." Criminal Code of Practice, sec. 246. Here is recognized the difference in importance between an instruction and *Page 284 an admonition. An examination of the subject in 23 C.J.S., Criminal Law, sec. 1227 et seq., will show that all jurisdictions require an instruction, or charge to the jury, that an accomplice must be corroborated. In that elaborate treatment it nowhere appears that an oral admonition has been deemed sufficient.
The present opinion reverses a policy of law which has been observed from the beginning of the Commonwealth.
It is elementary in criminal procedure that the court must correctly give all the law covering the case, and by sec. 225 of the Criminal Code of Practice the instructions must be in writing. If the instructions are not in writing, then they are not in the proper form.
So far as I know, this court has never written that sec. 225 may be waived in a felony case. A defendant may waive his right to have the jury admonished by not requesting an admonition, but there is no duty upon the defendant to request an instruction in a criminal case and his silence does not waive his right to have the court properly instruct the jury in writing upon the whole law. Clair v. Com., 267 Ky. 363,102 S.W.2d 367. If the defendant can waive the giving of written instructions in a felony prosecution, then his waiver must be express and not passive by mere failure to object.
I am authorized to say that Judge Latimer joins in this dissent.