Duncan v. Com.

• Decision Date: 18 December 1959
• Citation: 330 S.W.2d 419
• Parties: Amos L. DUNCAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 419

330 S.W.2d 419

Amos L. DUNCAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Dec. 18, 1959.

Carl F. Eversole, S. M. Ward, Hazard, for appellant.

Jo M. Ferguson, Atty. Gen., David B. Sebree, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

Amos L. Duncan was convicted of armed robbery and sentenced to life imprisonment. One of the grounds on which he appeals is that the indictment does not sufficiently describe the offense of armed robbery as defined in KRS 433.140. The indictment reads as follows:

'The Grand Jury of the County of Perry in the name and by the authority of the Commonwealth of Kentucky, accuse Howard Hicks, Amos L. Duncan and Clell Miller of the crime of Armed Robbery committed in manner and form as follows, to-wit:

'The said Howard Hicks, Amos L. Duncan and Clell Miller in the said County of Perry on or about 2 day of April, 1958, and within twelve months next before the finding of this indictment, did unlawfully, feloniously, by force, violence and arms and by putting him in fear of bodily harm, did take, steal and carry away from the person in the actual presence of said Chester Flynn, against the will and consent of said Chester Flynn, the personal property of said Chester Flynn, and the said Howard Hicks, Amos L. Duncan and Clell Miller, with the felonious and fraudulent intent then and there to convert the same to their own use, and to permanently deprive said Chester Flynn of his property therein, the property being money, and other items of personal property exact description unknown to grand jury contrary to the from of the statute in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky.'

There was no demurrer, nor were the indictment or the instructions on armed robbery attacked in the motion and grounds for new trial.

The indictment will not support a conviction for armed robbery, because it does not state the vital fact, differentiating armed robbery from the lesser offense of simple robbery, that the robbery was committed by use of a 'pistol, gun or other firearm or deadly weapon,' these being the terms by which the offense of armed robbery is specifically defined in the statute creating it, KRS 433.140. The words 'armed' and 'arms' used in the indictment cover objects of any kind that may be used as weapons (Webster's International Dictionary of the English Language, Second Edition, G. & C. Merriam Co., 1955), whether deadly or not. They might properly refer to an ordinary flyswatter, deadly to the fly but not usually so considered with respect to human life. The words 'force and arms,' from the Latin 'vi et armis,' indicate violence, but not necessarily the use of weapons. Black's Law Dictionary, 4th ed., pp. 774, 1737; Ballentine's Law Dictionary (1948 ed.), pp. 515, 1339; Schanz v. State, 17 Wis. 251, wherein the words 'with force and arms' in an indictment were held insufficient to describe larceny with a dangerous weapon.

The Attorney General frankly concedes that the indictment is not sufficient to charge the offense for which the penalty of life imprisonment was pronounced (citing Privett v. Com., 233 Ky. 471, 26 S.W.2d 3; Lynch v. Com., 248 Ky. 210, 58 S.W.2d 408, and Miller v. Com., 248 Ky. 717, 59 S.W.2d 969), and that the conviction was erroneous. See also Com. v. White, 109 S.W. 324, 33 Ky.Law Rep. 70, wherein an indictment for pointing a deadly weapon at another was held insufficient because it failed to describe the instrument claimed to be the deadly weapon. The principles enunciated in that case apply more strongly to the instant case because of its more serious nature.

The indictment does, however, sufficiently allege the elements of the crime of robbery and for that reason was not demurrable. See Coates v. Com., 235 Ky. 683, 32 S.W.2d 34, 35, holding that omission of the word 'maliciously' in an indictment charging felonious shooting and wounding with intent to kill was a fatal defect, but one which was not waived by failure to demur because the indictment nevertheless alleged a public offense of lesser degree (e. g., assault and battery):

'In the circumstances the case is merely one whether the accused was convicted of a greater crime than that charged in the indictment, thus presenting a situation that the law does not permit.'

For the same reason, that the public offense of robbery was charged in the indictment, appellant's motion for a peremptory was of no avail. Rowe v. Com., 283 Ky. 367, 141 S.W.2d 284. Assuming, then, that the instructions were erroneous on the ground that they embraced an offense greated than the offense validly alleged in the indictment, yet the appellant did not raise the question in his motion and grounds for new trial and cannot now attack the instructions. Eve v. Com., 278 Ky. 123, 128 S.W.2d 616, and cases collected in West's Kentucky Digest, Criminal Law, k1064(7). Though his motion for new trial included the ground that 'the verdict is both against the law and the evidence' it did not reach the instructions, for it has been held that merely to state in the motion 'that a verdict 'is against the law' raises no legal questions for the determination of this court.' Helton v. Com., 312 Ky. 268, 226 S.W.2d 939, 941. 'A verdict is contrary to law only when it is contrary to instructions, whether right or wrong,' (emphasis added). Beach v. Com., Ky., 246 S.W.2d 587, 588.

Thus we have a case where, so far as concerns the sufficiency of the indictment to support the verdict and judgment, the appellant can be said to have sat with folded arms, failing to preserve the error in the trial court, and might as well be in this court without any bill of exceptions at all. It is unfortunate and perhaps inexcusable that the trial court was not given a fair and timely opportunity to correct the error, the question being raised for the first time on appeal. But our system of justice is such that principles override individual cases, and counsel for appellant on his petition for rehearing makes the point that in a long line of cases this court has said that even in the absence of a bill of exceptions it will on appeal review the matter of whether the indictment supports the verdict or judgment. See, for example, Napier v. Com., Ky., 298 S.W.2d 690; Mattingly v. Com., Ky., 251 S.W.2d 237; Stonefield v. Com., 282 Ky. 692, 139 S.W.2d 752; Harris v. Com., 275 Ky. 425, 121 S.W.2d 693; Maynard v. Com., 210 Ky. 362, 275 S.W. 871, and other cases collected in West's Kentucky Digest, Criminal Law, k1090(1). Under the circumstances we are obliged to make an honest appraisal of what this shibboleth really means.

The language of the cited cases to the effect that on appeal the court may always determine the sufficiency of the indictment to support the conviction is perhaps too broad, for the correct test is whether the indictment states a public offense. See Hopper v. Com., 250 Ky. 405, 63 S.W.2d 467; Moore v. Com., 266 Ky. 514, 99 S.W.2d 715; Maggard v. Com., 257 Ky. 414, 78 S.W.2d 315; Rowe v. Com., 283 Ky. 367, 141 S.W.2d 284, and Strunk v. Com., 302 Ky. 284, 194 S.W.2d 504, wherein the rule is properly stated. Apparently the rule grows out of §§ 275 to 279, inclusive, of the Criminal Code of Practice, which provide for the arrest of a judgment if 'the facts stated in the indictment do not constitute a public offense within the...