ON REHEARING The original opinion has been challenged only as to our disposition of the question arising out of the reception and subsequent striking of evidence regarding the ring of the deceased found in appellant's possession. The consideration of the present contentions requires an amplified statement of those proceedings.
The sheriff of Chaves county, testifying for the state, was asked if immediately after the death of the deceased it was reported to him that her ring was missing. This was the first question relating to the ring, and the objection was made that it was irrelevant to any issue in the case, and was an independent transaction, which could serve only to prejudice the jury against the defendant. On the overruling of the objection, the witness testified that he was so informed, and that he directed two deputies to search appellant for it, and that subsequently they gave him a ring which he then produced and which was marked as an exhibit. A deputy sheriff was then sworn and testified that he was sent by the sheriff to search appellant; that he told appellant he was looking for a diamond ring, and appellant replied that the only ring he had was the one on his finger; that on searching appellant the ring was found in his watch pocket. To all of these questions the original objection was reiterated. Then the witness was shown the ring and asked to identify it as the one found on appellant's person. The objection was renewed, and it was further pointed out that the consideration for the operation had already been shown to be a promissory note. Thereupon the special prosecutor made the statement of the state's theory of admissibility, closing with these words:
"That is the reason he took it off the woman's finger." *Page 333
Then counsel objected that, since the real purpose of the evidence was now disclosed, it substantiated the contention which he had made from the beginning, that the evidence was irrelevant to the case on trial and constituted an independent transaction. This objection being overruled, the witness answered that it was the same ring. He was then asked if appellant had many any statement as to where he got the ring. The same objection was again interposed, in the course of which appellant's counsel interpreted the previous statement of the special prosecutor as the announcement of a purpose "to show robbery after death." This objection being overruled, the witness stated that appellant had said that he had obtained the ring from one Gates. Here adjournment was taken for the day. The next morning the court, without motion from either side, struck all of the evidence and directed the jury not to consider it. Thereupon appellant's counsel called attention to the prejudicial character of the statement of the special prosecutor. This was also stricken, on motion of the state, and the jury was directed not to consider it. Appellant's counsel then excepted that the prejudicial effect of the evidence and of the statement of the special prosecutor could not be cured by striking.
This recital discloses that the idea of an independent crime did not reach the jury through any evidence received or offered. It reached the jury only through the suggestion of the special prosecutor that appellant took the ring off the woman's finger, interpreted by appellant's counsel as a charge of robbery of the dead. The distinction has an important bearing on all of appellant's present contentions.
It is admitted that the evidence had a tendency to connect appellant with the deceased and thus had some probative value upon an issue in the case. But it is argued that the admissibility of the evidence is to be judged in the light of its announced purpose. So judged, appellant contends, the real purpose was to show the commission of an independent crime. He asserts the proposition that, if evidence is but slightly probative as to a material issue, and is also highly prejudicial, the latter characteristic, outweighing the former, should lead to its rejection. In *Page 334 support of this he cites numerous passages from Wigmore on Evidence (2d Ed.) particularly sections 1864, 1904.
We may doubt if Professor Wigmore means to say more than that a trial judge may be supported in the exercise of a discretion to exclude such evidence. However that may be, the point is not well taken here for several reasons. In the first place, as already pointed out, it was not the evidence, but the remarks of counsel, that contained the prejudice. Further, most of the evidence had been properly received before any improper purpose had been disclosed. Again, in striking the evidence, the court must have acted favorably upon the very contention here made. True, he overruled it for the moment. Very little occurred thereafter, however, and we can attach no legal consequence to the night adjournment which intervened before the evidence was stricken.
We appreciate, of course, the importance of withholding from the jury evidence of an independent crime. With well-recognized exceptions, it is error to admit it. Among the numerous decisions cited by appellant to this point, we note some which may indicate the proper course to have been pursued and the proper limit of appellant's right. These are to the effect that, when a motive or state of feeling is to be shown, it may be proper to show that the defendant had been accused of or charged with another crime, though it would be error to permit the truth of such accusation or charge to be developed. Martin v. Commonwealth, 93 Ky, 189,19 S.W. 580; Binns v. State, 46 Ind. 311; Riggs v. Commonwealth,103 Ky. 610, 45 S.W. 866; Commonwealth v. Andrews, 234 Pa. 597,83 A. 412; Menefee v. State, 67 Tex.Crim. R., 149 S.W. 138. Applying that principle to the present case and assuming favorably to appellant, that it would have been error to permit the state to prove that appellant had become possessed of the ring by criminal means, it was still proper for the state to prove everything that it did prove.
So we conclude that the evidence was not erroneously received, and that this is not a case for the application of the doctrine that evidence may be so prejudicial that the *Page 335 error in admitting it cannot be cured by striking. We conclude also that, if appellant's rights were invaded, it was in the announcement of an improper purpose for evidence already properly received; a case of misconduct of counsel.
Appellant further urges that, if he was wrong in assuming that the evidence was erroneously admitted, nevertheless the court erred in striking it of his own motion, because this deprived appellant of the right to rebut it. This is a novel proposition. While there was no formal motion to strike from either side, we cannot doubt that the trial judge justifiably considered appellant's constantly reiterated objection to all of the evidence as amounting to such a motion; this particularly in view of appellant's failure to object to the striking. He now protests that, considering his embarrassing situation, he was not called upon to object. It seems plain, however, that his situation was self-imposed. When the special prosecutor, arguing the admissibility of evidence obviously proper, intimated a purpose either to make further proof which would be objectionable or to use the evidence already in as the basis of objectionable argument, appellant made his choice. He objected, not to misconduct of counsel, but to the evidence. Had he properly directed his objection, he would have preserved both the right to rebut the evidence at the trial and the right here to urge any error arising out of misconduct of counsel. But, having taken advantage of the situation to seek and obtain what he was not entitled to, a striking of the evidence, he cannot now be heard to urge either misconduct of counsel or that the evidence was improperly stricken.
Appellant complains that to sustain the conviction on the theory of the admissibility of the evidence stricken, is to permit the state to change to a different theory in this court. Even assuming, though not justified by the record, that the prosecutors, during the adjournment, became convinced of the validity of appellant's objections and yielded the point, we still have only a case of invited error.
What we have said disposes of appellant's suggestion that the decision will be a precedent for the practice of introducing improper evidence, only to withdraw it after *Page 336 the harm has been done, thus both saving the record and preventing rebuttal.
Considering appellant's age, the judgment amounts to a life sentence in the penitentiary. The case is important. We have not spared time or pains in the consideration of it. But, finding no error which warrants a new trial, we feel constrained to adhere to the original disposition of the appeal.
BICKLEY, C.J., and PARKER, SADLER, and HUDSPETH, JJ., concur.