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Attorney(S)

A.E. Funk, Atty. Gen., Guy L. Dickinson, Asst. Atty. Gen., for appellant. Frank Ginocchio, Lexington, for appellee.

Judges

MORRIS, Commissioner.

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Smart Summary

Case Summary: Commonwealth v. Welch et al. (Court of Appeals of Kentucky, Nov. 21, 1951)

Factual and Procedural Background

The Commonwealth appealed from an order of the Fayette Circuit Court dismissing an indictment that charged the appellees with engaging in the occupation of receiving or transmitting wagers on horse races, an offense under KRS 436.490.

The indictment followed the statute's language, alleging the occupation was carried on at a room or building located at 181 North Limestone Street, Lexington, Kentucky, and expressly alleged the business was not carried on in an enclosure where licensed horse races are conducted.

Appellees filed a joint demurrer to the indictment which the trial court overruled. They then moved for a bill of particulars, requesting (1) the names and addresses of persons alleged to have wagered, names of horse races and horses, and the time, date and place of those races (as relevant), and (2) a full statement of the facts on which the Commonwealth would rely.

The court granted the motion in part and ordered the Commonwealth to supply the information requested in paragraph (1) (the specific identities, races, dates, etc.). The Commonwealth's attorney stated an inability to furnish the specific information sought in paragraph (1) but filed an amended response (even though paragraph (2) had not been ordered). The amended response stated that the Commonwealth would produce a witness who would testify that he was employed by defendants to operate a handbook at the named place; that, for a period beginning one year prior to the indictment and continuing for several months thereafter, he marked race results on a blackboard "as reported to said handbook"; that the handbook was operated practically every day except Sundays and holidays; and that on each day of operation approximately 15 to 20 persons congregated and made bets on horse races with the defendants.

The trial court adjudged the bill of particulars insufficient, found the Commonwealth's attorney had stated his inability to comply with the order as to paragraph (1), and dismissed the indictment. The Commonwealth objected and appealed.

Legal Issues Presented

Whether the trial court properly adjudged the Commonwealth's bill of particulars insufficient where the Commonwealth admitted it could not furnish the specific names of bettors, names of horses and races, and dates/places of races requested by defendants.
Whether dismissal of the indictment was an appropriate sanction for the Commonwealth's admitted inability to provide the detailed particulars ordered by the trial court.
Whether the Commonwealth was required, in this prosecution for "engaging in the occupation" of receiving or transmitting wagers (as opposed to individual acts of betting), to disclose detailed particulars that are arguably within the defendants' own knowledge.

Arguments of the Parties

Appellees' Arguments

They moved for a bill of particulars seeking specific identities (names and addresses of bettors), names of races and horses, and times/places of races, contending the indictment's defects justified requiring those particulars to enable proper defense preparation.
Appellees' brief also attacked the indictment on grounds of alleged defects, apparently to support the contention that the court was authorized to require the detailed bill of particulars ordered.

Commonwealth's Position

The Commonwealth did not contest that a bill of particulars could be required in the abstract, but the Commonwealth's attorney stated he was unable to furnish the specific information requested in paragraph (1) of the motion (names of bettors, horses, races, dates/places of races).
The Commonwealth filed an amended response describing the expected testimony (operation of a handbook at the specified place, a witness's role in marking race results on a blackboard over a stated period, and that roughly 15–20 persons daily made bets at the place), and represented that it had furnished all information it possessed relevant to a bill of particulars.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Clary v. Commonwealth, 163 Ky. 48, 173 S.W. 171, 173	Establishes that a bill of particulars is not designed to cure an insufficient indictment; it is intended to give additional notice where the indictment is otherwise sufficient on demurrer and the trial court, in its discretion, deems it necessary for fair notice.	The court relied on Clary to emphasize that a bill of particulars cannot be used to rehabilitate an indictment that is defective on demurrer and to frame the proper purpose of a bill of particulars in this case.
Commonwealth v. Chesapeake O. R. Co., 128 Ky. 749, 110 S.W. 253	Holds the Commonwealth (prosecution) should not be required to furnish a defendant with a detailed statement of facts that are or should be within the defendant's knowledge; the prosecution must make an honest effort to disclose the necessary information it reasonably can.	The court invoked this precedent to conclude that the prosecution was not obligated to provide the detailed identities, races, and dates requested by defendants where such particulars were within the defendants' knowledge or beyond the prosecution's ability to supply, and to assess the sufficiency of the Commonwealth's amended response.

Court's Reasoning and Analysis

The court began by noting there is no statutory procedure governing bills of particulars in Kentucky, but that the court has recognized their necessity, purpose, and effect. It summarized the established principles:

A bill of particulars is not a device to cure an indictment that is insufficient on demurrer (Clary).
In the absence of statutory entitlement, the issuance of a bill of particulars is within the sound discretion of the trial court; the trial court may properly refuse to order a bill when a demand seeks detailed disclosure that would unduly limit or embarrass the prosecution or reveal material witnesses (citing recognized authority and prior holdings).
The Commonwealth should not be required to provide detailed statements of facts which are or should be within the defendant's knowledge; the Commonwealth need only make an honest effort to furnish the necessary information it reasonably can (Commonwealth v. Chesapeake O. R. Co.).

The court then focused on the precise ground of the dismissal: whether the trial court abused its discretion by finding the Commonwealth's bill of particulars insufficient and dismissing the indictment after the Commonwealth admitted inability to comply with the order for detailed particulars (paragraph (1) requests).

Two key analytical points guided the court's conclusion:

The nature of the offense charged: The appellees were indicted for "engaging in the occupation" of receiving or transmitting wagers under KRS 436.490, not for discrete acts of "betting on horse races." Because the indictment charged the operation of an illegal business (a handbook operation), the court concluded the prosecution was not under a requirement to supply the fine-grained particulars (names of horses, races, individual bettors, and dates/places of races) demanded by defendants.
The Commonwealth's amended response: Although the Commonwealth said it could not provide the specific particulars ordered, it furnished a factual narrative identifying the expected witness and the substance of that witness's testimony (employment by defendants at the named place, marking race results on a blackboard over a stated period, frequency of operation, and an estimate of persons who made bets there). The court found this response fairly apprised the defendants of what the Commonwealth expected to prove and limited the proof at trial to those facts.

On that basis, the Court of Appeals determined the trial court erred in adjudging the bill of particulars insufficient and in dismissing the indictment. The appellate court did not evaluate the ultimate sufficiency of the Commonwealth's proof at trial, nor did it revisit the overruling of the demurrer to the indictment, noting the demurrer remained overruled in the record.

Holding and Implications

Holding: The Court of Appeals reversed the trial court's order of dismissal and remanded the case with directions to set aside the order of dismissal.

Implications:

Direct effect on the parties: The dismissal of the indictment at the trial level was set aside, and the prosecution may proceed consistent with the trial court's remaining rulings. The Commonwealth's amended response was deemed, as a matter of law, a sufficient statement of the facts the prosecution intended to prove for purposes of the bill of particulars at issue.
Scope of precedent: The opinion relied upon existing Kentucky authorities concerning the limited role of bills of particulars and the prosecution's obligation to disclose only what it reasonably can; the court did not purport to create a new broad rule. No new or expansive precedent beyond the application of those principles in this factual context was announced.

Attorneys of record (as shown in the opinion): A.E. Funk, Attorney General, and Guy L. Dickinson, Assistant Attorney General, for the Commonwealth; Frank Ginocchio for the appellees. The appeal came from the Fayette Circuit Court (Judge Joseph J. Bradley).

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COMMONWEALTH v. WELCH et al.

MORRIS, Commissioner.

The Commonwealth appeals from an order dismissing an indictment charging appellees with engaging in the occupation of receiving or transmitting wagers on horse races, one of the offenses denounced by KRS 436.490.

The indictment both in the accusatory and descriptive parts, follows the precise language of the statute, and specifically charges that the "occupation" was carried on "at a room or building located at 181 North Limestone Street, Lexington, Kentucky * * *." It alleges that the business was not carried on in an enclosure where licensed horse races are conducted; this in the language of the statute.

Appellees filed joint demurrer to the indictment, the court overruling. They then moved the court to require the Commonwealth to supply a bill of particulars, specifically asking the Commonwealth's attorney:

"(1) To give the names and addresses of persons alleged to have wagered on horse races, and the names of the horse races and horses on which said wagers were alleged to have been made, received, transmitted or negotiated by the defendants, and the time, date and place where said alleged horse races were run or about to be run, or advertised or posted or reported as being run.

"(2) To state fully the facts on which the Commonwealth will rely to prove the charges contained in the indictment against these defendants herein."

The court sustained the motion and directed the attorney to file a bill of particulars, giving the information requested in paragraph (1) of the motion, employing the exact language of that paragraph. No mention was made in the order of the request set up in paragraph (2).

In response the Commonwealth's attorney admitted his inability to furnish the specific information requested in paragraph (1). Although the court's order did not require response to paragraph (2) an additional or amended response was filed. In this it was stated that the Commonwealth would produce the witness who would testify in substance that he was employed by defendants in their operation of a handbook at the place mentioned in the indictment; that "from a date which was one year prior to the indictment, and continuing for several months thereafter," he was employed by defendants to mark on a blackboard the results of various horse races "as reported to said handbook;" that the handbook was operated by the defendants during said period practically every day, excepting Sundays and holidays; that on each day of operation approximately from 15 to 20 persons "congregated in said place of business * * * and did make bets on horse races with these defendants."

The amended response stated that the Commonwealth had furnished "all of the information which it has with reference to the facts required to be stated in a bill of particulars." Upon submission the court adjudged "that said bill of particulars is insufficient and is a failure to comply with the aforesaid order, and the Commonwealth's attorney having stated his inability to comply with such order;" the indictment was dismissed over objection and exception by the Commonwealth, with appeal granted.

Appellee's brief goes to some length in an attack on the indictment, pointing out defects which it is contended make the indictment vulnerable; however, the contention is made apparently for the purpose of showing that the court was authorized to require a bill of particulars. The Commonwealth does not contend that a bill of particulars should not have been supplied. The record shows that the demurrer to the indictment stands overruled, hence we are not now concerned with the correctness or incorrectness of that ruling.

We have no statutory rule in respect to a bill of particulars, though its necessity, purpose and effect have been recognized by this court. In the case of Clary v. Commonwealth, 163 Ky. 48, 173 S.W. 171, 173, we dealt with the sufficiency of an indictment for embezzlement, and held the indictment bad. A bill of particulars was filed, but the court held that it "did not cure the indictment", and then said: "A bill of particulars is not designed to uphold an insufficient indictment, but such bill is designed only to be used where the indictment is sufficient upon demurrer, but, in the sound discretion of the trial court, and in furtherance of justice, in order to give the defendant fair notice of what he is called upon to defend".

In the absence of a statutory provision requiring a bill of particulars, the defendant is not entitled to one as a matter of right; the granting or refusal rests in the sound discretion of the court. 14 Am. Jur., Criminal Law, p. 127. There is no abuse of discretion, and the court is justified in denying a request for a bill, if the demand be for a detailed disclosure, which if furnished would unduly limit or embarrass the prosecution, or serve to exclude material witnesses. 27 Am.Jur., Indictment and Information, p. 674.

We have held that the Commonwealth should not be required to furnish a defendant with a detailed statement of facts which are or should be within his knowledge. All that is required is an honest effort on the part of the prosecution to obtain and give to the defendant all the necessary information that it reasonably can to enable him to know, as far as possible, the act or acts relied upon by the prosecution for a conviction. Commonwealth v. Chesapeake O. R. Co., 128 Ky. 749, 110 S.W. 253.

As noted above, we are not concerned with the question as to whether or not the court exercised a sound discretion in ordering a bill of particulars; the only question is whether or not there was an exercise of sound discretion in declaring the response insufficient, and in dismissing the indictment, chiefly, if not altogether, on the ground that the Commonwealth admitted its inability to comply with the court's order in respect to paragraph (1) of appellees' motion. We are of the opinion that it was not to be required of the Commonwealth to give the names of horses, horse races, or names and addresses of persons wagering on horse races, or dates when or places where races were run. Appellees do not stand indicted for "betting on horse races," KRS 436.490, but for engaging "in the occupation" denounced by that section.

The response fairly advised appellees that the Commonwealth would offer testimony that within a period stated, appellees had operated a handbook at a place named, and that various persons made bets on horse races. Without passing on the quality of this proof, we are of the opinion that the response fairly apprised appellees of what the Commonwealth expected to prove, the proof on trial to be limited to the facts stated. Robinson's Criminal Law, p. 1866, Sec. 1771.

We conclude that the court was in error in adjudging the bill insufficient, and in dismissing the indictment. The judgment is reversed and case remanded with directions to set aside the order of dismissal.

COMMONWEALTH v. WELCH