I cannot agree with the majority opinion that the radio speech made by Mr. McAfee was admissible in evidence to show motive on appellant's part or that he was the aggressor in the affray. It is admitted by the majority that these other crimes with which Mr. McAfee said appellant had been charged and had escaped punishment had no connection with the offense for which he was then on trial.

It is almost puerile to say that this highly inflammatory evidence was admitted in its entirety for the purpose of showing motive or that Weber was the aggressor. Had that been the reason, the trial judge so easily could have admitted the bare fact that Mr. McAfee had attacked appellant in a political speech without reading to the jury all twenty-five crimes with which Weber had been charged, which ran the gamut of practically all the vicious and heinous offenses known to the law — from assault and battery through rape to murder.

This evidence in all its details could have been offered by the Commonwealth only for one purpose, and that was to so inflame the jury as to prevent the accused from receiving a fair and impartial trial. How effective was this evidence is eloquently reflected in the verdict fixing a fine of $5,000 and four years confinement in jail. While I cannot say such punishment runs afoul of sec. 17 of our Constitution as being excessive or cruel, I do say it was ample.

I feel that the majority is too optimistic when they *Page 69 say that it must be presumed that the jury obeyed the admonition of the court not to let this evidence prejudice them against Weber. It could not have done otherwise than to have prejudiced the jury, as the severity of the punishment inflicted shows. No admonition could have removed the poison this evidence implanted in the minds of the jury, any more than "All the king's horses and all the king's men couldn't put Humpty Dumpty together again."

As is stated by the majority, intent may be presumed where there is evidence of an aggravated assault. Since this was certainly an aggravated assault, it was entirely unnecessary to prove motive or that Weber was the aggressor. In Brashear v. Com., 178 Ky. 492, 199 S.W. 21, and in Butler v. Com., 284 Ky. 276, 144 S.W.2d 510, this court reversed judgments of conviction because there was admitted evidence that the accused had committed other crimes, which was introduced for the ostensible purpose of creating prejudice against him. In my judgment the Brashear and Butler opinions rule the case at bar. Admitting arguendo that such evidence is admissible, then its probative value is so negligible as compared with its prejudicial effect as to make it incompetent.

The law says that an accused is entitled to a fair trial regardless of what his character or reputation may be. To my mind this evidence was not only erroneously admitted, but was so prejudicial as to preclude appellant from having the character of trial the law guarantees him.