Finch v. Com.

• Decision Date: 29 September 1967
• Parties: James E. FINCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Millard D. GRUBBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 146

419 S.W.2d 146

James E. FINCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Millard D. GRUBBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Sept. 29, 1967.

Jack M. Lowery, Jr., Louisville, for appellants.

Robert Matthews, Atty. Gen., Darryl Owens, Asst. Atty. Gen., Frankfort, for appellee.

CULLEN, Commissioner.

James E. Finch and Millard D. Grubbs were convicted under KRS 435.150 of arresting one H. A. Lewis 'otherwise than according to law.' Finch was given a one-year sentence and Grubbs received a five-year sentence. Both have appealed.

Two associates of Finch and Grubbs in an organization created by Grubbs called the National Law Enforcement Committee made a 'citizen's arrest' of Lewis on a charge of false swearing. They took Lewis before a magistrate who held a hearing and then ordered Lewis released from custody on the ground that since the evidence produced at the hearing did not show that Lewis had knowingly and willfully sworn falsely, the evidence was not sufficient to justify holding Lewis for the grand jury. Indictments for false arrest then were brought against Finch, Grubbs, the two associates who had physically made the arrest, and another associate. The theory of the prosecution, fully proved and in fact not denied, was that the arrest was planned and carried out as a specific project of her 'National Law Enforcement Committee' in which project all of the defendants participated. One of the defendants was permitted to plead guilty to an amended charge of assault and battery and was given a suspended sentence. The other four all were convicted but the two other than Finch and Grubbs were given suspended sentences and they have not appealed.

The statute authorizing a 'citizen's arrest,' KRS 431.005(2), provides that a private person may make an arrest when a felony has been committed in fact and he has reasonable grounds to believe that the person being arrested has committed it. The indictment in the instant case did not indicate in what respect the arrest did not comply with this statute or in what other way the arrest was illegal or false; it simply charged in the words of KRS 435.150 that the arrest was 'otherwise than according to law.' The appellants moved that the indictment be quashed for failure to state the facts constituting the offense, and they moved in the alternative for a bill of particulars. The trial court overruled both motions, in which rulings the appellants claim error.

Prior to the adoption of the present Rules of Criminal Procedure the holding of this Court was that an indictment under KRS 435.150 was not sufficient, and was demurrable, if it merely alleged that the arrest was 'otherwise than according to law,' without specifying the circumstances and facts of the arrest. See Carroll v. Commonwealth, 164 Ky. 599, 175 S.W. 1043. Kimbler v. Commonwealth, Ky., 269 S.W.2d 273; Lewis v. Commonwealth, Ky., 299 S.W.2d 635. However, the new rules have adopted the principle of notice pleading, RCr 6.10, and it now is considered sufficient if the indictment fairly informs the defendant of the nature of the crime with which he is charged, without detailing the 'essential' factual elements. See Fitzgerald v. Commonwealth, Ky., 403 S.W.2d 21; Hines v. Commonwealth, Ky., 390 S.W.2d 152; Runyan v. Commonwealth, Ky., 393 S.W.2d 877. So we think there was no error here in the overruling of the indictment. But we think it was error to overrule the motion for a bill of particulars.

The theory of the new rules of criminal procedure is that if the defendant needs information concerning the details of the charge against him to enable him to prepare his defense he should be supplied them through a requested bill of particulars, rather than that a requirement be made that every indictment set forth all details of the charge. As we shall show, we think the defendants in the instant case reasonably needed a bill of particulars to enable them to prepare their defense and to protect them against the surprise of a multiple-theoried prosecution.

As the trial progressed it developed that the prosecution was proceeding on three different theories of an unlawful arrest, each resting on different evidence. One theory was that Lewis (the man who was arrested) did not in fact swear falsely. Another was that the arrest made by the defendants was not a citizen's arrest (without warrant) but was an attempted official arrest on an invalid warrant. The third theory was that even if the arrest technically was valid it was not made in good faith. See Begley v. Commonwealth, Ky., 60 S.W. 847, 22 Ky.Law Rep. 1546. We think the presentation of these varied theories, without notice or warning, put an unreasonable burden of defense upon the defendants and therefore the court committed prejudicial error in overruling the motion for a bill of particulars.

The appellants make another claim of error in which we find merit. The error consisted of a statement by the trial judge to the jury that the Court of Appeals had decided in the civil case in which Lewis was alleged to have made a false affidavit, that what was said in the affidavit was true, and that the decision was conclusive of the question of whether Lewis was guilty of false swearing. This statement amounted to a directed verdict of guilty against the defendants,...