Foster v. Com.
| Decision Date | 22 January 1960 |
| Citation | 331 S.W.2d 277 |
| Parties | Willard J. FOSTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
S. M. Ward, Vernon Faulkner, Hazard, for appellant.
Jo M. Ferguson, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.
Willard J. Foster was convicted of armed robbery and sentenced to life imprisonment. The principal ground on which he appeals is that the indictment does not sufficiently describe the offense defined by KRS 433.140. He takes the position that the trial court erred in instructing the jury on armed robbery because the indictment states the offense of simple robbery only.
The indictment reads as follows:
'The Grand Jury of Perry County, in the name and by the authority of the Commonwealth of Kentucky, accuse, Wilard James Foster of the crime of Armed Robbery committed Willard James Foster of the
'The said defendant, Willard James Foster in the said county of Perry, on the 2nd, day of March A.B. [sic] 1959, and before the finding of this indictment, did unlawfully, willfully, feloniously, with force and arms, unlawfully, feloniously, by force and violence and by putting A. J. Stout, Jr., in fear of bodily harm, did take, steal and carry away from the Stout Liquor Store, of which A. J. Stout, Jr., was in charge of at the time, against the will and consent of said A. J. Stout, Jr., or his father, A. J. Stout, Sr., the owner of the Stout Liquor Store, the personal property of said A. J. Stout, Sr., and the subject of larceny, the following property to-wit: About $138.00 U. S. Money one 12 guage [sic] shotgun, and 1-38 pistol, with the felonious and fraudulent intent them and there to convert the same to his own use, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky.'
At the conclusion of the evidence the trial court gave two instructions to the jury. One was an instruction on armed robbery following the form of instruction No. 1 set forth in Stanley's Instructions to Juries, Sec. 961. The other was the reasonable doubt instruction. Appellant duly preserved his objection to the instructions by specifically including it in his motion and grounds for new trial. Barton v. Com., 238 Ky. 356, 38 S.W.2d 218.
The question raised in this case has been determined by our decision in the case of Duncan v. Com., Ky., 330 S.W.2d 419. The indictment does not state the offense of armed robbery, and...
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Foster v. Commonwealth of Kentucky, 15047.
...robbery on an indictment returned by a grand jury, under KRS 433.140. This conviction was reversed by the Kentucky Court of Appeals (331 S.W.2d 277) for the reason that the indictment was insufficient to charge the offense under the statute. The indictment was quashed by the trial judge and......
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Foster v. Com.
...appealed to this Court and the judgment was reversed on the ground the indictment did not sufficiently state that offense. Foster v. Commonwealth, Ky., 331 S.W.2d 277. Subsequently the Commonwealth quashed the original indictment, had the matter again referred to the grand jury, and a new a......