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.
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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,
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.,
The indictment does, however, sufficiently allege the elements of the crime of robbery and for that .reason was not demurrable. See Coates v. Com.,
“In the circumstances the case is merely one where 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.,
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
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the ti ial 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 hill 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.,
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.,
“As a general rule, if an indictment, information, or other accusation states no offense within the jurisdiction of the court, such defect is fatal at any state of the proceedings, and is not waived by the failure to take advantage thereof in the trial court, but may be raised for the first time on writ of error or appeal. On the other hand, objections based on merely formal and unsubstantial defects, which might have been fatal if raised in the trial court, will ordinarily be deemed to have been waived if not so raised.”
See 24 C.J.S. Criminal Law § 1671, pp. 271-275 to the same effect.
If we were to go no further, it would still be necessary to affirm the conviction in this case for the reason that the indictment did state the public offense of robbery, of which the crime of armed robbery is, by definition, but an aggravated degree. However, under §§ 262 and 265 of the Criminal Code of Practice a defendant may not be found guilty of a crime higher in degree than that charged in the indictment, and in Jarvis v. Com.,
A review and comparison of the cases holding that various defects were such that the indictments did or did not state public offenses would serve only to document the obvious fact that no court of changing composition over a period of decades can hope to achieve infallible consistency. Suffice it to say that the complete failure to state at least one of the descriptive terms, “pistol,” “gun,” “firearm,” or “deadly weapon,” in an indictment for armed robbery, the offense itself being created and defined in those terms, is a substantial defect because it goes to the very gravamen of the case. True, this particular defendant may have been fully aware of the details of the charge made against him, but we cannot indulge that presumption without abrogating the fundamental principle that it is not enough to charge the crime by name; the substantive elements must also be stated. See Com. v. Bowman,
Judgment reversed, and cause remanded for further proceedings consistent herewith.
Judges MILLIKEN and MOREMEN dissent from this opinion because they believe that the words in the accusatory part of the indictment charging the appellant with “the crime of Armed Robbery” in conjunction with the words in the descriptive part of the indictment that the crime was committed by “force, violence and arms” stated the offense “in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case.” Cr.Code, § 122 (2). They are influenced also by the fact that there is no intimation in the record by objections or otherwise that either the appellant or his counsel had any doubt about the identity of the offense for which the accused was being, tried.