In briefly stating my reasons for dissenting from the opinion of the majority of the court I will confine myself strictly to the facts of this case, one of the most important of which is that appellant admitted at his trial while testifying in his own behalf that he, himself, and alone, committed the crime with which he was charged and convicted by the verdict of the jury. He was corroborated by his mother, and no one denied that testimony. The opinion holds that there was no evidence tending to show that appellant's father participated in any manner as aiding and abetting him to commit the crime, and no one testified that the father did so aid and abet his son, or that the father acted as principal, not even the father himself who was not introduced. It is therefore perfectly plain beyond all possibility of doubt that appellant did not commit the crime with which he was charged in any other capacity than that of principal.

The theory of the opinion is that the jury may have convicted appellant as an aider and abettor of the principal, whomsoever he may have been, and who the Commonwealth contended in this case was his father. We have seen, however, that the testimony in the case disproved completely that possibility, and which the majority opinion so holds.

In such circumstances it appears to me that it would require a jury composed of morons to find appellant guilty as an aiderand abettor instead of as principal. In order for the jury to have returned such a verdict they would be compelled to arrive at that conclusion upon no testimony whatever to support it, and in the face of the express sworn confession of the appellant that he was the principal and committed the offense *Page 73 as such, but sought to be excused therefor on the ground of self-defense. It is impossible for me to conceive of any theory upon which the verdict of guilty could be predicated, except on the ground that appellant was the principal, and it was upon that conclusion of the jury that it convicted him.

The cases relied on for a reversal of the judgment because of error in giving an instruction on aiding and abetting are: Steeley v. Com., 129 Ky. 524, 112 S.W. 655; Hagan v. Com.,179 Ky. 201, 200 S.W. 336; Macom v. Com., 302 Ky. 136,194 S.W.2d 169, and Howard v. Com., 304 Ky. 149, 200 S.W.2d 148. In a more or less brief reading of those cases I do not find where appellant in them confessed that he alone was guilty of committing the involved felony as principal and sought to be excused therefrom on the ground of self-defense, as is true in the instant case. I am therefore forced to conclude that the only ground for reversing the judgment, as stated in the opinion, is so completely groundless as to require its promotion in order to be classified as fallacious.

I admit that there was no room in this case for the aiding and abetting instruction, but I conclude that it was merely surplusage, of no material effect, and could not have possibly influenced the jury in arriving at its verdict of guilty. On the contrary the road leading to the conclusion that appellant was guilty only as principal was broad and unobstructed.

However, if the facts in the cases supra upon which the reversal is based, were complete in every respect on all fours with those in this case, then they should be overruled as being glaringly erroneous and should be given no stare decisis effect as precedents.

The question in this case relates only to the practice or procedures employed at the trial, as was true in the case of Nugent v. Nugent, 281 Ky. 263, 135 S.W.2d 877. This court in many cases has held that the stare decisis doctrine should be given less force and effect when only questions of that character are involved, than in overruling former opinions wherein property rights are involved. Liberty National Bank Trust Co. v. Loomis et al., 275 Ky. 445, 121 S.W.2d 947, 131 A.L.R. 1419; Payne v. City of Covington, 276 Ky. 380, *Page 74 123 S.W. 1045, 122 A.L.R. 321. In those two cases, and other domestic ones cited therein, as well as foreign ones, it is pointed out that the doctrine is never absolutely mandatory in any state of facts so as to handcuff or muzzle courts by forcing them to perpetuate error, thus depriving them of authority to correct it. However, when property rights are acquired before the former opinion, or opinions, were overruled, the effect of the overruling opinion should have only a prospective effect, but the reason for that qualification does not apply to the facts of this case.

However, if the opinion as appears on its face was reached by adherence to the stare decisis doctrine then the judgment herein should have been affirmed, since in the case of Caudill v. Com., 155 Ky. 578, 159 S.W. 1149, 1151, it is expressly held that the giving of the aiding and abetting instruction, though erroneous because of no evidence to support it, was not prejudicial so as to authorize a reversal of the judgment of conviction of appellant therein. The only difference between that case and the instant one is that the evidence in the former tended to show only that Caudill, if he were guilty at all, was guilty as a principal, there being no evidence sustaining his guilt as aider and abettor. Therefore, this case is stronger than that one, in that in this case, as we have seen, appellant expressly confessed that he was the principal and was corroborated in that by his mother. In the Caudill opinion where the same alleged error was relied upon we said: "This instruction (the aiding and abetting one) might properly have omitted the submission to the jury of any question as to whether appellant aided or abetted in the shooting and death of the deceased, as the evidence demonstrated that the deceased was shot and killed by appellant alone, but its failure to do so was not prejudicial error."

In the Hagan case supra — which is the chief one cited in support of the opinion — the Caudill opinion was referred to, and the distinction that the court attempted to draw between it and the Caudill case is thus stated (179 Ky. 201,200 S.W. 338): "In that case, however, not only Caudill, but all the witnesses for the commonwealth, stated that he fired the fatal shot, and that the person he was charged with aiding and abetting did *Page 75 not shoot at all. In the case under consideration, appellant was the only eyewitness, and the Commonwealth introduced certain circumstances to overcome the effect of her testimony."

No such distinguishing facts exist in the instant case, from which I conclude that the Hagan opinion is not applicable since its facts are not on all fours with those appearing in this one, except in this case the appellant admitted the homicide as having been committed by himself alone without the assistance of an aider or abettor, thus making it a stronger one for holding that the aiding and abetting instruction was not prejudicial as was held in the Caudill case.

It is essential that the citizenry of all sovereignties should not have their confidence in their courts shaken, but I fear that the unfounded reasons given in the majority opinion for reversing the judgment in this case might have that effect.

Believing that the opinion is erroneous, I most respectfully dissent and believe that the judgment should have been affirmed.