It was said in that case in holding that she was not an accomplice: "To be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime. Anello v. State, 201 Md. 164, 168, 93 A.2d 71; Butt v. State, 81 Ark. 173, 98 S.W. 723, 727; Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523; Hicks v. State, 126 Tenn. 359, 149 S.W. 1055; State v. Cartright, 188 Iowa 579, 174 N.W. 586."
To be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime. Anello v. State, 201 Md. 164, 168, 93 A.2d 71; Butt v. State, 81 Ark. 173, 98 S.W. 723, 727; Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523; Hicks v. State, 126 Tenn. 359, 149 S.W. 1055; State v. Cartright, 188 Iowa 579, 174 N.W. 586. People v. Jackerson, 247 N.Y. 36, 159 N.E. 715, is an illustration of the requirement of criminal intent.
When a jury reports that it is hung, the trial judge may retire the jurors for further consideration of the case and instruct them that they should try to reach a verdict. Taylor v. Commonwealth, 240 Ky. 450, 42 S.W.2d 689; Wiley v. Commonwealth, 246 Ky. 425, 55 S.W.2d 41. The judge may further instruct the jurors not to be obstinate. Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523; 85 A.L. R. 1434. However, the trial judge must refrain from any conduct or language which tends to coerce the jury.
An accomplice is one who knowingly, voluntarily, and with common intent, unites with the principal in the commission of the crime, either by being present and joining in the criminal act as an aider and abettor, or, if absent, by advising and encouraging in its commission. Cook v. Commonwealth, Ky., 273 S.W.2d 390; Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523; Baker v. Commonwealth, 212 Ky. 50, 278 S.W. 163. Section 241 of the Criminal Code of Practice provides that a conviction cannot be had upon the testimony of an accomplice, unless such testimony be corroborated by other evidence tending to connect the defendant with the commission of the offense.
An accomplice is one who knowingly, voluntarily, and with common intent, unites with the principal in the perpetration of the crime, either by being present and joining in the criminal act, by aiding and abetting in its commission, or, if not present, by advising and encouraging the performance of the act. Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523; Cook v. Commonwealth, Ky., 273 S.W.2d 390. Ordinarily one who steals goods is not an accomplice of the person who knowingly receives them. Solomon v. Commonwealth, 208 Ky. 184, 270 S.W. 780.
The Commonwealth takes the position that McKinney was not an accomplice and further, even though he be considered an accomplice, the testimony of Adcock is sufficiently corroborative. In Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523, 524, we find this definition of an accomplice: " '* * * one who knowingly, voluntarily, and with common intent with the principal unites in the commission of the crime, either by being present and joining in the criminal act, by aiding and abetting in its commission, or, not being present, by advising and encouraging the act.' Baker v. Commonwealth, 212 Ky. 50, 278 S.W. 163". There is no evidence that McKinney helped or participated in the commission of the crime. An accomplice is one who could be convicted as principal upon evidence heard against accused.
Under our system of jurisprudence, the jury is the sole arbiter of facts and possesses the exclusive right to agree or disagree, and no judge by threat, direct or indirect, veiled or open, shall attempt to coerce a verdict or exert the powerful influence of his office to force one. It is generally thought the words and acts of a presiding judge have great weight with juries and for that reason we have often written that he should at all times be cautious in what he says or does in the presence of the jury. Sandefur v. Com., 143 Ky. 655, 137 S.W. 504; Taylor v. Com., 240 Ky. 450, 42 S.W.2d 689; Miller v. Com., 240 Ky. 355, 42 S.W.2d 523; Wiley v. Com., 246 Ky. 425, 55 S.W.2d 41. In the Sandefur opinion authorities are cited showing the limit to which a trial judge may go in requesting the jury to find a verdict and beyond which he cannot go with propriety.
The very decided alteration was effected by striking from the section as quoted above, the word "not." Since that amendment, we have repeatedly followed the definite provision of the Code, as will be noted by reference to Jennings v. Com., 239 Ky. 629, 40 S.W.2d 279; Alsept v. Com., 245 Ky. 741, 54 S.W.2d 337; Williams v. Com., 254 Ky. 277, 71 S.W.2d 626; Miller v. Com., 240 Ky. 355, 42 S.W.2d 523, and to Kentucky Digest, Criminal Law, Key Number System 1134 (3). Upon a careful consideration of the question before us, we have concluded that since the May, 1937, indictment was returned in a manner not authorized by the Code provisions, supra, and the question was fairly raised, without waiver of right to present it, we are compelled to reverse the judgment below, with directions for further proceedings consistent with this opinion.
Appellant moved to quash the indictment for this reason. Formerly, this was a matter not subject to review in this court, under section 281 of the Criminal Code of Practice. Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523. Since the amendment to section 281 by chapter 63 of the Acts of 1932 (section 2), these questions may now be considered on appeal. The record discloses that the circuit court, on discovering that one of the jury commissioners was disqualified by reason of actions pending against him, selected another jury commissioner to take his place, ordered the wheel emptied and refilled. The petit jury which tried appellant was drawn from the wheel after it had been refilled.
"The test for determining whether one is an accomplice is to weigh the evidence showing his participation in or connection with the offense, and to determine from such evidence whether he could be convicted as either a principal or as an aider or abettor. Duke v. Com., 201 Ky. 365, 256 S.W. 725; Crouch v. Com., 201 Ky. 460, 257 S.W. 20." In Miller v. Com., 240 Ky. 355, 42 S.W.2d 523, it was held that "an 'accomplice' within the meaning of the Criminal Code of Practice, supra (sec. 241), is one who knowingly, voluntarily, and with common intent with the principal unites in the commission of the crime, either by being present and joining in the criminal act, by aiding and abetting in its commission, or, not being present, by advising and encouraging the act." See, also, Fox v. Com., 248 Ky. 466, 58 S.W.2d 608; Mitchell v. Com., 240 Ky. 258, 42 S.W.2d 305, and Poore v. Com., 249 Ky. 665, 61 S.W.2d 320, and for a general rule construing section 241 of the Criminal Code of Practice with relation to the duty of the court where the question of testimony of an accomplice is involved, see Fox v. Com., supra.