Dalton v. Com.
| Decision Date | 17 March 1972 |
| Parties | Carl T. DALTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Stanley C. Nickell, Greenup, for appellant.
John B. Breckinridge, Atty. Gen., Richard E. Fitzpatrick, Asst. Atty. Gen., Frankfort, for appellee.
Carl Dalton appeals from a judgment sentencing him to two years in the penitentiary pursuant to a jury verdict finding him guilty under an indictment which read as follows:
'GREENUP CIRCUIT COURT
COMMONWEALTH OF KENTUCKY
VS
CARL T. DALTON Defendant(s)
The grand jury charges:
On or about the 28th day of March, 1971, in Greenup County, Kentucky, the above named defendant broke and entered the Storehouse of Greenup County, Kentucky, to-wit: The County Maintenance Garage with the intent to steal therefrom against the peace and dignity of the Commonwealth of Kentucky.
/s/ Wallace C. Reed
Foreman'
Dalton's first contention is that the indictment should have been quashed upon the ground that the building specified in it is not a 'public building' within the meaning of KRS 433.180, the applicable statute being KRS 433.190, which prescribed a penalty of not less than one nor more than five years for what is generally called storehouse breaking. (The penalty under KRS 433.180 is not less than two nor more than 10 years.)
We do not find it necessary to consider whether a county garage is a public building within the meaning of KRS 433.180. The indictment did not state a public offense under that statute anyway, because the criminal act it defines with respect to public building is a theft or physical removal of property, whether or not it be accompanied by a breaking. It does not purport to cover the act of breaking, as such, unless of course the building comes within the clause relating to dwelling houses. However, the indictment did state facts constituting the offense of storehouse breaking under KRS 433.190.
RCr 6.10 says that an indictment shall be sufficient if it contains a plain concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged, and that an error in citation of the statute alleged to have been violated shall not be ground for dismissal or reversal unless it misleads the defendant to his prejudice. Since the factual allegations of the indictment stated an offense under KRS 433.190 the citation of KRS 433.180 was erroneous. On proper motion the Commonwealth could have been required to elect between amending the citation from KRS 433.180 to KRS 433.190 or having the indictment dismissed for failure to state a public offense under KRS 433.180, but we are of the opinion that the inconsistency did not constitute a justifiable ground for outright dismissal of the indictment.
Since the defendant actually raised the question of whether the indictment stated an offense under KRS 433.180, we do not see how it could be said that he was 'misled' by the error. It seems most likely that instead of being misled he simply misconceived his remedy. As in the case of RCr 6.10, RCr 6.12 admonishes that an indictment shall not be deemed invalid for an imperfection that does not prejudice the defendant.
The erroneous reference to KRS 433.180 did not become prejudicial to the defendant until that stage in the trial at which the jury was first told that the least punishment it could fix upon a conviction was two years in the penitentiary. Usually this would occur during the course of the Commonwealth's opening statement, at which time the question could be raised and reserved for future review by an appropriate objection, but in this instance the record does not disclose the contents of the opening statement. Therefore, according to the transcript, the point first became material when the instructions were given to the jury. The proof showed an actual theft of property from the county garage, but since the indictment was...
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Armstrong v. Commonwealth, No. 2006-CA-002550-MR (Ky. App. 4/11/2008)
...be questioned, then such should be presented to the trier of fact. Further, the Kentucky Supreme Court recognized in Commonwealth v. Dalton, 478 S.W.2d 734, 736 (Ky.1972) that "[o]n proper motion the Commonwealth could have been required to elect between amending the citation ... or having ......
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Holland v. Com.
...sufficient to apprise Holland of the charges against him. Commonwealth v. Ransdall, 153 Ky. 334, 155 S.W. 1117 (1913); Dalton v. Commonwealth, Ky., 478 S.W.2d 734 (1972). To support his argument that he was entitled to a directed verdict at the close of all the proof, Holland takes the 'sca......
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Brown v. Commonwealth, No. 2008-CA-001242-MR (Ky. App. 1/29/2010)
...of the indictment stated an offense under KRS 218A.1435, the citation of KRS 218A.1412 was not erroneous. See Dalton v. Commonwealth, 478 S.W.2d 734 (Ky. 1972); RCr 6.10(3). Thus, indictment was not invalid. As such, the failure of Brown's counsel to object to the indictment did not constit......
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Rivera-Rodrigues v. Commonwealth
...of homicide, the remedy of the appellants was a motion to require the Commonwealth to elect." 491 S.W.2d at 650, citing Dalton v. Commonwealth, 478 S.W.2d 734 (Ky. 1972). Rivera-Rodrigues argues that:[t]he indictment sets out enough detail as to intentional murder, but fails to adequately s......