I am constrained to disagree with my brethren that the closing argument for the Commonwealth was not prejudicial to defendant when the County Attorney said, "And further, Gentlemen, Mr. Baker and Mr. Huguely both know that this man is guilty in spite of all their efforts in this case." When defendant's objection thereto was overruled by the trial judge the jury were in effect told that this argument was proper and that when they retired to their room to consider the case immediately following this closing argument they might consider the fact that the accused's counsel knew he was guilty. It is inconceivable why any trial judge would not have sustained an objection to such argument, or why this court would not hold it prejudicial to defendant.

Criminal trials must be conducted according to rules prescribed for that purpose. I have been unable to find a better statement of the law in this jurisdiction concerning improper arguments than is contained in Music v. Commonwealth,186 Ky. 45, 216 S.W. 116, on page 121 (cited in the majority opinion), where it is written: "The law in such cases recognizes the frailty of human nature, and that in the heat of argument inappropriate remarks are liable to be made; but unless they are altogether unfounded from any fact or circumstance appearing in the case, and manifest such a wide departure from legitimate deductions as to be at once poisonous and prejudicial, a reversal will not be ordered for that reason alone. But if the complained of remarks are entirely foreign to anything appearing in the case, and if they were made for the purpose of taking an undue advantage, and such was their probable effect, it is the duty of the court to reverse the judgment rendered upon a verdict so obtained."

In the instant case the complained of remark was entirely foreign to any thing appearing in the record and could have been made for but one purpose, and that was to take undue advantage of the defendant. If such *Page 283 was its probable effect, then this case should be reversed. Of course, under the state of this record it is impossible for this court to state the exact effect of this argument on the jury, but in all probability it caused the jury to return a death penalty, because Jones, who was defendant's alleged companion in this crime and the leading spirit and apparently the more guilty of the two, was given on a separate trial the penalty of confinement in the penitentiary for 20 years.

Let it not be forgotten that this was the closing argument. The lips of defendant's counsel were closed. All they could do was to object, and when the court overruled their objection and approved this grossly improper and highly inflammatory argument, they were as helpless as one struck by lightning.

It is the usual conception of the public and of persons serving on juries that one accused of crime divulges all to his counsel. When the County Attorney so far overstepped the bounds of propriety as to tell the jury that defendant's counsel knew he was guilty, it was equivalent to telling that body that defendant had confessed his guilt to his attorneys. I cannot accept the specious reasoning of the majority that the objectionable words only meant that from the strong proof of the Commonwealth defense counsel must know their client was guilty.

If the zealous counsel representing the Commonwealth had said, "Judge Alcorn knows this man is guilt," and had the judge overruled an objection thereto, would this court hold that such an argument was not prejudicial? It is an accepted fact by jurors and all persons in any way connected with a criminal trial that defense counsel are in a much more advantageous position than the trial judge to know whether the accused is guilty of the crime for which he is under trial.

When the motion for a new trial was heard the County Attorney filed his affidavit setting out his argument in different words from those appearing in the bill of exceptions. While the majority opinion says this court cannot consider this affidavit and that it is confined to what appeared in the bill of exceptions, yet the affidavit must have had some influence with the majority, otherwise it would not have been set out in their opinion. *Page 284

Section 272 of the Criminal Code of Practice says a juror is not a competent witness to attack a verdict, therefore defendant could not have used any member of that body as a witness on the hearing of his motion. But the Commonwealth was not precluded from using members of the jury as witnesses to show that this grossly improper argument did not influence the jury in returning a verdict of death. Gleason v. Com., 145 Ky. 128, 140 S.W. 63, Ann. Cas 1913B, 757; Howard v. Com., 69 S.W. 721, 24 Ky. Law. Rep. 612; Wolf v. Com., 214 Ky. 544,283 S.W. 385. The County Attorney must have known his affidavit as to what argument he made could not properly be considered by this court and that we are confined to what appears in the bill of exceptions. The bill does not show the argument as stated in his affidavit. Also, he doubtless knew that he could have introduced members of the jury who tried this case and have incorporated their evidence in the bill of exceptions to show that the argument so vigorously complained of did not influence the jury in returning a verdict of death. It must be assumed the reason he did not introduce members of the jury as witnesses on the motion for a new trial is that no juror would testify he was not influenced by the improper argument.

The mind is the most delicate, intricate and unpredictable of all human mechanism. No one can look at another and say of what he is thinking, or as to how certain words or events may affect him emotionally, or as to what mental reaction they may produce. It is only those possessing occult powers, a crystal ball, a magic wand and enchanted words, who can read human thoughts and predict human emotions. The educated have no great confidence in those who lay claim to such supernatural powers. It is worthy of note that the law does not say if this court thinks that an improper argument affected the jury the judgment must be reversed, but the legal writers wisely realized it is impossible to probe the mind of a human miles away, whom the judges have never seen, and they have said if such argument probably affected the jury in reaching its verdict, there is ground for reversal.

The same Judge of this court who wrote the opinion in the Music case, 186 Ky. 45, 216 S.W. 116, had this to say on the subject of improper argument in Johnson *Page 285 v. Com., 188 Ky. 391, 222 S.W. 106, 111: "At any rate, it is impossible for us to say that such a charge (defendant was called a boot-legger) would not so affect the verdict of the jury. It is sufficient for the purpose that the charge might produce upon the minds of the jury such adverse effect, and the objection to the statement should have been sustained and the jury admonished to not regard it."

Here a man's life is involved. The closing argument is admitted by the majority of this court as being highly improper. It could have been made only to gain an undue advantage of the defendant. Otherwise, why did the County Attorney make it? While short, it was a most ruthless and effective attack on two honorable attorneys, who as officers of the court were the only persons connected with the trial who were serving without remuneration in an official, if not patriotic, capacity. The jury were told these gentlemen knew their client was guilty and when they resorted to the only shield they possessed — their right to object — the trial judge knocked it from their hands, and in effect said to the jury, "Yes, gentlemen of the jury, defendant's counsel who are officers of this court know he is guilty".

Immediately following this improper argument and its approval by the court, the jury retired to consider the case and returned a verdict of death. In another trial where no such argument was made, Jones, who was the ring-leader, was given 20 years in prison. Yet, the majority of this court says such argument could not have affected the jury because if it was probable that it could, or if it might have, then under the rule in this jurisdiction it is the duty of this court to reverse the judgment. Music v. Com. 186 Ky. 45, 216 S.W. 116; Johnson v. Com., 188 Ky. 391, 222 S.W. 106.

It just does not strike the human mind as reasonable to say in the circumstances presented by this record that such argument was not prejudicial.

As prejudicial to defendant as were the words of the County Attorney, their effect was increased ten-fold when the trial judge erroneously overruled the objection of defense counsel. This fact the majority opinion ignores. Attention is called that in each of the two cases cited in support of the majority opinion the trial court *Page 286 sustained an objection to the complained of words, and in one of them the offending attorney withdrew the statement to which objection was made.

It was written in Ayers v. Com., 195 Ky. 343, 242 S.W. 624,628, that despite defendant's character or the crime with which he is charged he "is entitled to at least one tolerably fair trial." Due to the highly improper and inflammatory argument, which the trial judge approved and which were the last words heard by the jury before their retirement to consider the case, it strikes me that this defendant did not have even a tolerably fair trial.