Kimbler v. Com.
| Decision Date | 23 June 1954 |
| Citation | 269 S.W.2d 273 |
| Parties | KIMBLER et al. v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
Marvin D. Jones, Paintsville, Ky., for appellants.
J. D. Buckman, Jr., Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
Appellants, Hoppy Kimbler and Arthur Gullett, deputy sheriffs of Johnson County, were convicted of 'feloniously arresting and imprisoning Earl McKenzie against his will without authority of law', a crime denounced by KRS 435.150, and their punishment was fixed at confinement in the penitentiary for five years and a day. In seeking to reverse the judgment appellants insist the court erred: 1. in overruling their demurrer to the indictment; 2. in overruling their motion for a continuance; 3. in not instructing on the whole law of the case.
On the afternoon of December 26, 1952, McKenzie and Boone Fletcher went into the Johnson County jail to see an inmate. Appellants were in the jail office and when McKenzie and Fletcher came downstairs they arrested McKenzie for being drunk in their presence, and he was locked in jail some three hours but received no abuse or harm from appellant officers. The witnesses for the Commonwealth testified McKenzie was not 'drunk or drinking' at the time appellants arrested him; while the defense witnesses testified McKenzie appeared to be drunk at the time of his arrest.
The indictment follows the language of KRS 435.150 and charged appellants 'acting as deputy sheriffs, peace officers in and for the County of Johnson, did unlawfully, willfully and feloniously arrest and imprison Earl McKenzie by taking and detaining him against his will, without authority of law'.
It is the general rule in this jurisdiction that an indictment following the language of the statute is good if the statute is descriptive of the offense and states or implies every fact and circumstance necessary to constitute the offense. But if the offense is described only in general terms in the statute, it is necessary for the indictment to charge the particular facts and circumstances which constitute the offense, and an indictment in such an instance which only follows the language of the statute is not good on demurrer. Criminal Code of Practice, Sec. 124(4); Com. v. Fain, 248 Ky. 383, 58 S.W.2d 642; Carroll v. Com., 164 Ky. 599, 175 S.W. 1043, and the authorities cited therein.
It will be noted that the statute and the indictment here, which followed the language of the statute, do not specify the circumstances and facts under which such unlawful arrest is made, 'otherwise than without authority of law', but left the question of the legality of the arrest to be determined by reference to other laws regulating the subject.
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Queen v. Com.
...for the indictment merely to follow the words of the statute. See Commonwealth v. Fain, 248 Ky. 383, 58 S.W.2d 642; Kimbler v. Commonwealth, Ky., 269 S.W.2d 273. With a proper indictment a bill of particulars probably will be If the indictment sufficiently details the acts constituting each......
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Finch v. Com.
...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, an......
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Lewis v. Com.
...indictment under KRS 435.150 is not sufficient if it merely alleges that the arrest was made 'without authority of law.' Kimbler v. Commonwealth, Ky., 269 S.W.2d 273; Carroll v. Commonwealth, 164 Ky. 599, 175 S.W. 1043. An example of a sufficient indictment under KRS 435.150 is set forth in......