author: LUKOWSKY, Justice. REED, C. J., STEPHENSON, Justice,

text:
    John Richard LUTTRELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. James Brownlow SULLIVAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 10, 1977.

      Amelia Franklin Adams, Asst. Public Defender, Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant Luttrell.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
    William P. Croley, Louisville, for appellant Sullivan.
   LUKOWSKY, Justice.

The appellants were indicted by a Jefferson County grand jury for attempted murder of a police officer, assault in the first degree, and unauthorized use of a motor vehicle. KRS 506.010(4)(a); KRS 507.020; KRS 508.010, KRS 514.100. Count one of the indictment alleged: “That on or about the 21st day of December 1975, in Jefferson County, Kentucky, both the named defendants committed the offense of criminal attempt (sic) murder of a police officer by shooting Robert Phillips, a member of the Louisville Police Department.”

Since attempted murder and first degree assault are both Class B felonies and are composed of similar (though not identical) elements, the Commonwealth elected to try them for attempted murder and unauthorized use of a motor vehicle. A jury convicted them of both charges. Luttrell was sentenced to 20 years for the attempted murder and 12 months for the unauthorized use. Sullivan was sentenced to 10 years for the attempted murder and 12 months for the unauthorized use. They appeal.

The factual picture which emerged at the trial was based largely upon a statement that Sullivan gave to the Louisville police and upon incriminating admissions that Luttrell made to his friends, a Mr. and Mrs. Curtis. Luttrell, age 25, and Sullivan, age 17, wanted to drive from Jeffersonville, Indiana to Louisville, Kentucky one Sunday afternoon to get a six pack of beer. Lutt-rell entered an automobile that belonged to a stranger and opened the door for Sullivan. Sullivan got in and Luttrell drove to Louisville. Sullivan discovered a .38 caliber revolver which belonged to the owner of the car. He opened the cylinder and pulled out a “.38 slug,” put the bullet back in the chamber, and showed the gun to Luttrell.

In Louisville, police officer Robert Phillips stopped the vehicle because Luttrell had run a stop sign. Luttrell got out of the car and walked toward the officer’s car. He saw that the police car was furnished with a computer which he knew could be used to trace license plates. Officer Phillips asked Luttrell for his driver’s license. Luttrell told him that he would have to get it out of the car. He returned to the car and told Sullivan to “shoot him”, the police officer. Sullivan got the gun out and handed it to Luttrell. Luttrell spun around and shot Officer Phillips in the chest. The officer fired one shot at the fleeing automobile. One block later the fleeing automobile was involved in a traffic accident, and Luttrell and Sullivan escaped.

Officer Phillips was hospitalized for five days. He was off work recuperating for approximately six weeks. Fortunately for Officer Phillips, the pistol’s chamber which was discharged had been loaded with bird shot and his wounds were superficial.

Officer Gerald Beavers of the Louisville Police Department, with the assistance of Officer Phillips, made a composite drawing of the man who had shot Phillips. Having seen the composite drawing, a Jefferson-ville police officer suggested that Luttrell was suspect. Officer Phillips identified Luttrell at a “picture lineup” and, after Luttrell’s arrest, at a regular lineup.

Sullivan was arrested with Luttrell. Having been apprised of his constitutional rights, he made a voluntary admission which incriminated him and Luttrell. A “sanitized” version of his statement in which references to Luttrell were deleted was admitted into evidence at trial as impliedly permitted by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Luttrell had made incriminating statements to two of his friends, Mr. and Mrs. Curtis. Both testified against him, and copies of the statements they had given the police were admitted into evidence at trial.

Both appellants contend that it was reversible error for the trial judge to fail to give instructions they tendered on assault in the second degree. KRS 508.020. Sullivan also contends that he was entitled to an instruction on criminal facilitation. KRS 506.080.

KRS 505.020(2) provides: “A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or
(d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission.”

KRS 508.020(1)(b) provides that a person is guilty of assault in the second degree when “he intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; . . Physical injury is defined in KRS 500.-080(13) to be substantial physical pain or any impairment of physical condition. A person is guilty of attempted murder when, with the intent to kill someone, he takes a substantial step toward killing him. KRS 506.010(1)(b); KRS 507.020. Assault in the second degree requires a state of mind, an act and a result, physical injury. Attempted murder requires only a state of mind and an act. It has no injury element.

The defendants in this case were charged in the indictment with the attempted murder of a police officer “by shooting Robert Phillips.” While the indictment alleges an attempted murder it also alleges an assault in the second degree. If the defendants shot Robert Phillips in an attempt to kill him they caused him physical injury and used a deadly weapon. One cannot be shot in an attempt to kill without being physically injured or without use of a deadly weapon. Consequently, proof of the facts charged in the indictment establish the commission of both offenses. Under these circumstances assault in the second degree is a lesser included offense because it is established by proof of the same or less than all the facts required to establish the commission of attempted murder and it differs from attempted murder only in respect that a lesser kind of culpability suffices to establish its commission.

An instruction on a lesser included offense should not be given unless the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but conclude that he is guilty of the lesser included offense. Muse v. Commonwealth, Ky., 551 S.W.2d 564 (decided April 1, 1977).

While a reasonable juror might doubt that these defendants intended to kill Officer Phillips because of Luttrell’s direction to Sullivan to “shoot” not “kill” Phillips, a reasonable juror could conclude that these defendants fired at Phillips not intending to kill him but intending only to injure him to the extent necessary to effect their escape. The question of whether intent to kill or intent to injure should be inferred from the evidence is one that should have been presented to the jury via an instruction-on assault in the second degree. Reversal and a new trial are required.

At a new trial an instruction on assault in the first degree need not be given because the evidence is not sufficient to support a conviction of that offense. The elements of assault in the first degree are the same as those of assault in the second degree except that serious physical injury must result. KRS 508.010(1)(a). Serious physical injury is defined by KRS 500.080(15) to be physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ. While Officer Phillips suffered from his wounds he was not seriously injured in the statutory sense.

KRS 506.080 provides that a person is guilty of criminal facilitation “. when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for commission of the crime and which in fact aids such person to commit the crime.” The example used in Pal-more, Instructions to Juries, Sec. 907 (1975), to illustrate when this instruction should be given is in the case of one who sells a gun to another whom he knows is going to use it in committing a crime. KRS 502.020 provides that a person is guilty of a substantive offense committed by another where with intention of promoting or facilitating the commission of the offense, he “Aids, counsels, or attempts to aid such person in planning or committing the offense . . ”. The example used in Palmore, Instructions to Juries, Sec. 913 (1975), to illustrate when this instruction should be given is in the case of one who aids or assists another in an unlawful shooting by handing him a gun.

Sullivan would be guilty of criminal facilitation if he furnished Luttrell with the means of committing a crime knowing that he would use it to commit a crime but without intention to promote or contribute to its fruition. He is guilty of the substantive offense by complicity if he furnished the means of committing the crime intending to aid in the commission of the crime. Under these circumstances criminal facilitation is a lesser included offense because it has the same elements except that the state of mind required for its commission is less culpable that the state of mind required for commission of the other offenses.

While a reasonable juror might doubt that Sullivan acted as a principal, because of the age difference between Sullivan and Luttrell and the difference between the levels of activity of Sullivan and Luttrell, a reasonable juror could conclude that Sullivan acted as a facilitator. Consequently, at the new trial Sullivan is entitled to instructions on criminal facilitation of attempted murder and assault in the second degree.

A number of irregularities occurred during the trial. Because there will be a new trial, we find it prudent to comment on them so that they will not be repeated.

In final argument the prosecutor inadvertently read Luttrell’s name while quoting from Sullivan’s “sanitized” statement. Bruton v. United States, supra, prohibits such contamination.

Discovery proceedings required the Commonwealth to produce the composite drawing of Luttrell for examination by defense counsel. For some reason the Commonwealth failed to do so. As a result the trial judge refused to permit it to be introduced into evidence. To bridge this gap the Commonwealth had its police artist draw a new composite drawing in the courtroom in the presence of Luttrell and the jury while he related what Officer Phillips had told him about his assailant’s appearance. We are unable to perceive either the logic or the legal relevance of this demonstration. Presumably by the time this case is retried the defense will have had the opportunity to examine the original drawing. It will then qualify for admission into evidence and there will be no conceivable need for a “performing” artist.

In final argument Luttrell’s attorney inadvertently commented upon Sullivan’s failure to testify. KRS 421.225 provides “In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him.” In Collins v. Commonwealth, Ky., 396 S.W.2d 318 (1965) we held that this language precluded the defendant’s attorney from explaining during final argument why his client had not testified. In Green v. Commonwealth, Ky., 488 S.W.2d 339 (1972) we held that a defendant was not entitled to a “no inference” instruction because this statute prohibited anyone from commenting on the defendant’s failure to testify. It seems to us that the same limitation should apply with equal vigor to counsel for a co-defendant. We also point out that because a co-defendant’s attorney may not comment on the accused’s failure to testify, the possibility of such comment does not constitute a ground for separate trial. United States v. McKinney, C.A. 6th, 379 F.2d 259 (1967).

The written statements given by Mr. and Mrs. Curtis to the Louisville police were admitted into evidence at the trial. There was no showing that Mr. and Mrs. Curtis lacked independent recollection of Luttrell’s statements or that their memories could not have been refreshed by examining their statements. The witnesses gave no evidence which contradicted their statements. We are unable to conjure up a theory which supports the admission of these documents. Lawson, Kentucky Evidence Law Handbook, Sec. 8.80 (1976). Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969).

The judgment is reversed and the cause is remanded for a new trial.

CLAYTON, JONES, LUKOWSKY and PALMORE, JJ., concur.

REED, C. J.,

concurs in the result being of the opinion that the errors other than the failure to give Luttrell an instruction on second degree assault were sufficient to warrant reversal as to both appellants.

STEPHENSON and STERNBERG, JJ., dissent.

STEPHENSON, Justice,

dissenting.

I respectfully dissent from the majority opinion for the reason that I believe it is illogical. The second-degree assault instruction required here is based solely on the less than serious wounds received by the police officer. The majority opinion recognizes that had the chest wound been serious, by statutory definition, a first-degree assault instruction would have been required, not for the benefit of the appellant since the penalty is the same, but for the benefit of the Commonwealth. Had Lutt-rell fired at the officer and missed, there would be no additional instruction required other than the instruction given by the trial court in the circumstances presented here. The reasoning leading to the result in the majority opinion, based on the less than serious wound, is unsound. I find this result particularly distressing when the wounding of the police officer was less than serious by the pure happenstance of the round being loaded with birdshot, a condition not known by the appellants.

Further, I believe the majority opinion ignores the well-settled law in this Commonwealth that instructions given in a criminal case are based upon the evidence.

The majority opinion pays lip service to this concept by citing Muse. However, the appellants did not testify as to any exculpatory circumstance or intention on their part so as to justify finding guilt of a lesser charge. And the statement that a reasonable juror could conclude that the appellants fired at the officer not intending to kill him, but intending only to injure him to the extent necessary to effect their escape, based upon Luttrell’s direction to Siillivan to “shoot,” not saying “kill” the officer, approaches fantasy. The victim here was an armed police officer. We are not in the business of conjuring up speculative inferences to give a jury the opportunity to reduce the penalty for a criminal act. Neither Luttrell nor Sullivan testified. Why should we read possible exculpatory reasons into a scenario where Luttrell directed Sullivan to shoot the police officer and then fired into the officer’s chest? How a reasonable juror could from this record conclude no intent to kill, but only intent to injure in order to effect an escape is beyond my comprehension. The officer is alive only because the round in the pistol’s chamber was loaded with birdshot unbeknownst to the appellants. By the same token, I do not believe an instruction on criminal facilitation for Sullivan is required. There is no evidence or reasonable inference from the evidence in this record upon which to base an instruction on second-degree assault or criminal facilitation. In the absence of some testimony by the appellants upon which the instruction could be based, I object strongly to this court manufacturing speculative reasons for the appellants. This record portrays a cold-blooded attempt to murder a police officer without a single mitigating circumstance. For the foregoing reasons I dissent.

The evidence of guilt of the offense charged here is overwhelming to the point of being conclusive. The other assigned errors are, in my opinion, harmless beyond a reasonable doubt.

STERNBERG, J., joins in this dissent.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Phillip R. GROGAN, Respondent.
    No. SC-216-KB.
    Supreme Court of Kentucky.
    July 1, 1977.
    Rehearing Denied Aug. 19, 1977.
    Leslie G. Whitmer, Director, John T. Damron, Asst. Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    William E. Rummage, Rummage, Kamuf & Yewell, Owensboro, for respondent.
   Order and Opinion

Per Curiam.

This is a disciplinary proceeding against Phillip R. Grogan. On March 31, 1976, the Kentucky Bar Association filed a formal complaint against respondent in which he was charged with converting a client’s money to his own use. The misdoing came about in the following manner.

On February 4, 1975, respondent represented a client in a real estate closing. The property conveyed was subject to a mortgage to the Prudential Insurance Company of America, which was to be fully paid by the respondent from the funds received by him from the sale. These funds were appropriated by respondent to his own use. The encumbrance was not paid and foreclosure proceedings were commenced, but the suit had not actually been filed. On November 7, 1975, some seven months after the time he received the funds and after repeated efforts were made to secure the payment, the respondent paid the full amount of the balance due on the loan, plus interest and late charges.

The respondent admits to his misdoings and cooperated with the Kentucky Bar Association in the processing of this complaint. He comes before this court with a plea for leniency.

Respondent did not testify, nor is any explanation given for his actions. He offered four character witnesses who were very complimentary of his ability as a practicing attorney. The Trial Committee of the Bar Association recommended to the Board of Governors that respondent be suspended from the practice of law for three years. The Board of Governors recommends that respondent be suspended from the practice of law for three years and be required to pay the costs of this action.

In the response filed by counsel for respondent, it is stated that respondent received a fair and impartial trial and that he had no dispute with the facts as stipulated between petitioner and respondent. He requests this court, in mitigation of punishment, to. give weight and consideration to the evidence relative to his professional conduct prior to, and subsequent to, the date of the charged offense.

This court has consistently held that where the evidence discloses that an attorney has wrongfully appropriated to his own use the funds of his client, his culpability is great and his membership in the Kentucky Bar Association should be terminated. Kentucky Bar Association v. Friedlander, Ky., 536 S.W.2d 454 (1976); Kentucky Bar Association v. Tucker, Ky., 535 S.W.2d 97 (1975); Kentucky Bar Association v. Collis, Ky., 535 S.W.2d 95 (1975). Consistent with this policy, we are of the opinion that the recommendation of the Board of Governors should not be followed.

Respondent is disbarred from the further practice of law within this Commonwealth, and he is ordered to pay the costs of these proceedings.

All concur.


author: LUKOWSKY, Justice.

text:
    George R. CRAFTON et al., Appellants, v. BOARD OF TRUSTEES OF the HENDERSON-HENDERSON COUNTY PUBLIC LIBRARY et al., Appellees.
    Supreme Court of Kentucky.
    July 1, 1977.
    Charles B. West, Gary M. Gibbs, West, Ternes, Gibbs & Overfield, Henderson, for appellants.
    David H. Thomason, Trimble, Cubbage, Lindsay & Thomason, Henderson, E. Lambert Farmer, John S. Hoffman, King, Deep & Branaman, Henderson, for appellees.
   LUKOWSKY, Justice.

The sole question for decision is whether there is a public library district for Henderson County. The Court of Appeals answered the question in the affirmative at 549 S.W.2d 828 (1976). We affirm.

The General Assembly has provided two methods by which a public library district may be organized, financed, operated and dissolved:

(1) THE BALLOT METHOD: Upon the filing of a duly certified petition of one hundred or more qualified voters in each county to be included within the district, the Fiscal Court of that county shall adopt a resolution submitting the issue of establishing the district and imposing a special ad valorem tax for its maintenance and operation to the voters at the next general election. The district is established and the tax imposed upon a favorable majority vote. Such a district may be dissolved by a similar process. KRS 173.450 through KRS 173.650.

(2) THE PETITION METHOD: Upon the filing of a duly certified petition for establishment of the district and imposition of a special ad valorem tax for its maintenance and operation by fifty one percent or more of the number of duly qualified voters who voted in the last general election in each county to be included within the district, the Fiscal Court of that county shall adopt a resolution imposing the tax. The district is established upon the filing of a valid petition. Such a district may be dissolved by a similar process. KRS 173.710 through KRS 173.800.

On January 14,1976 a valid “ballot method” petition was filed with the Henderson Fiscal Court. On January 19, 1976 a valid “petition method” petition was similarly filed. On January 26, 1976 at the regular meeting, the Fiscal Court approved first the “ballot method” petition and then the “petition method” petition.

The proponents of the “petition method” appealed to the Henderson Circuit Court and sought to have the issue removed from the ballot for the election to be held in November. Some of the proponents of the “ballot method” intervened claiming that they were among the one hundred persons whose signatures were on the “ballot method” petition. Other proponents of the “ballot method” sued asking that the action of the Fiscal Court which established the library district by the “petition method” be declared void and that the collection of the tax be enjoined. The cases were consolidated. The Circuit Court ruled that there was an issue to be placed on the ballot, that the action of the Fiscal Court which established the library district was void and enjoined the collection of the tax. The proponents of the “petition method” appealed.

The Court of Appeals reversed and held that the library district had been created by the “petition method” and could be dissolved only in the manner provided by KRS 173.800, and that the ballot issue became moot. The Court of Appeals permitted the election to be held so as to ascertain the result in the event there should be reversal on further appeal. The issue was defeated at the election. We granted discretionary review.

The primary thrust of both the “ballot method” and the “petition method” is the same, i.e., to provide for the establishment of public library districts. Each is a symmetrical, complete and independent method of supplying the oxygen of literature to a community. Neither is designed to be a blanket to smother the other. If the respi-rations of culture are to be terminated, the mechanism to do so will be found in KRS 173.630 in the case of districts established by the “ballot method” and in KRS 173.800 in the case of districts established by the “petition method.”

Once the Fiscal Court determined on January 26, 1976 that the “petition method” petition filed January 19, 1976 was free of technical deficiencies the library district came into being by operation of statute and the Fiscal Court had no choice but to impose the tax to buy the oxygen. Holmes v. Hume, Ky., 424 S.W.2d 824 (1968). Therefore, on January 26, 1976 Henderson County had a public library district and the question proposed by the “ballot method” petition became moot. The people of Henderson County had their intellectual life support system and the question became whether to pull the plug. This may only be answered by resort to KRS 173.800.

If we were to believe that either one or both of these methods were unwise or foolish, we could not refuse to recognize or enforce them. The General Assembly has the right to be illogical and at times even frivolous. “For protection against abuses by legislatures the people must resort to the polls, not to the courts.” Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77 (1876).

The decision of the Court of Appeals is affirmed and the cause is remanded to the Henderson Circuit Court with directions to enter judgment consistent herewith.

All concur, except PALMORE, J., who did not sit.


author: STERNBERG, Justice.

text:
    Oscar Ray McDONALD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 1, 1977.
    Jack E. Farley, Public Defender, Kevin M. McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On January 12, 1976, Oscar Ray McDonald was indicted by the Grand Jury of Fayette County, Kentucky, for the December 3, 1975, killing of his stepfather. Appellant pled insanity. After a two-day trial he was found guilty of first degree manslaughter and sentenced to 20 years in the penitentiary. On this appeal appellant’s complaints are:

“I. Did appellant’s conviction of first degree manslaughter deny his right to due process under the Fourteenth Amendment to the United States Constitution since the prosecution failed to prove his sanity beyond a reasonable doubt?
II. Did the use of appellant’s request for counsel and decision to remain silent during custodial police interrogation as evidence of sanity deprive him of due process of law?
III. Did the trial court commit reversible error and deny the appellant’s constitutional right to a fair trial by permitting the Commonwealth to engage in improper conduct during closing argument?”

Appellant, 24 years of age, lived in Columbus, Ohio, and was in Lexington, Kentucky, to visit with his mother and stepfather. When he first arrived, they were not at home. He then visited with other friends and, while there, drank some beer and smoked marijuana. Later, when he returned to his mother’s home, he was greeted by his stepfather. After the exchange of a few pleasantries, appellant excused himself and went to the bathroom. When he returned he shot his stepfather with a handgun three times, until it jammed. He then hit him with the butt of the gun, knocking him down, and continued to beat him on the head. Appellant then dropped the handgun and went looking for a shotgun, but did not find one. Instead, he found a knife with which he cut his stepfather’s throat, stabbed him in the front part of his body ten times, and in the back part eleven times. He then dropped the knife and telephoned the police.

There was much testimony relating to appellant’s unusual conduct and demeanor. Four professionals testified as to his emotional and mental capacity. For the defense, one psychologist testified that appellant had a normal IQ and that he was a paranoid schizophrenic who could no more control a murderous impulse than he could stop a sneeze. A psychiatrist described appellant as being a paranoid schizophrenic and felt he knew right from wrong, but could not control his impulse to kill. The Commonwealth introduced a psychologist who testified that appellant had a normal IQ, with no serious psychiatric disorder. Also, the Commonwealth introduced a psychiatrist who testified that appellant had no serious mental disorder.

Appellant first attacks the proposition that a defendant has the burden of proving insanity. It is his contention that the mental condition of the appellant is an integral part of the crime and must be proven the same as any other element of the offense. Consequently, appellant opines that the due process clause of the Fourteenth Amendment to the Constitution of the United States places the burden on the Commonwealth to prove sanity beyond a reasonable doubt, rather than the burden being on the defendant to prove his insanity, even though the degree of proof is merely to the satisfaction of the jury. The attack, therefore, is twofold; first, it is contended that the Commonwealth not only has the burden of proving sanity but, secondly, it must prove sanity beyond a reasonable doubt.

The General Assembly, in dealing with the burden of proof and the responsibility for crime, has enacted KRS 500.070 and 504.020. KRS 504.020 provides:

“Mental disease or defect—(1) A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(2) As used in this chapter, the term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(3) A defendant may prove mental disease or defect, as used in this section, in exculpation of criminal conduct. (Enact. Acts 1974, ch. 406, § 39, effective January 1, 1975.)”

KRS 500.070 provides:

“Burden of proof—Defenses—(1) The commonwealth has the burden of proving every element of the case beyond a reasonable doubt, except as provided in subsection (3). This provision, however, does not require disproof of any element that is entitled a ‘defense,’ as that term is used in this code, unless the evidence tending to support the defense is of such probative force that in the absence of countervailing evidence the defendant would be entitled to a directed verdict of acquittal.
(2) No court can require notice of a defense prior to trial time.
(3) The defendant has the burden of proving an element of a case only if the statute which contains that element provides that the defendant may prove such element in exculpation of his conduct. (Enact. Acts 1974, ch. 406, § 7, effective January 1, 1975.)”

In support of his argument appellant relies upon Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); and the majority opinion in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), as well as Mr. Justice Frankfurter’s dissent in Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1951). A sufficient answer, contrary to the appellant’s argument, is contained in a comprehensive treatment of the subject in Patterson v. State of New York, -U.S. -, 97 S.Ct. 2319, 52 L.Ed.2d 281 (rendered June 17, 1977).

The law in this commonwealth requires a defendant only to prove insanity to the satisfaction of a jury. It does not violate appellant’s due process rights as encompassed in the Fourteenth Amendment to the Constitution of the United States.

In Issues II and III counsel for appellant vigorously criticizes the interrogation of witnesses by the attorney for the Commonwealth and severely criticizes his closing argument to the jury. He asserts that it was prejudicial error for the trial court to permit a witness for the Commonwealth to testify that while in the course of his interrogation appellant requested the assistance of counsel. The interrogation then ceased and appellant was permitted to contact and confer with an attorney of his own choice. Appellant complains that the Commonwealth’s Attorney, in his closing argument, erred in challenging appellant’s plea of insanity by referring to his request for counsel and his refusal to make a written statement as the action of a person not out of touch with reality. During the course of the Commonwealth’s Attorney’s interrogation of the medical witnesses, he asked each of them whether there was a psychiatric ward at the LaGrange Reformatory where inmates may receive treatment. Each witness responded in the affirmative. The Commonwealth’s Attorney, in his closing argument, commented on the availability of this psychiatric service. At the behest of the Commonwealth’s Attorney, one of the medical witnesses described the procedure used by a person having been found to be insane to secure his release, and complaint is also made of this line of interrogation and of his argument that the appellant could be released from prison if the examining physician determined him not to be insane. Also, criticism is leveled at the Commonwealth’s Attorney for his description to the jury of an insane person.

A careful examination of the transcript of the record in this case reflects that no objection was made to any of the interrogation by the Commonwealth’s Attorney, nor was any objection made to any of the remarks made by him in his closing argument to the jury.

The appellant is guaranteed a fair trial. This does not mean, however, a perfect trial, free of any and all errors. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). What it does mean is “ * * * that a litigant is entitled to at least one tolerably fair trial of his action.” Neely v. Strong, 186 Ky. 540, 217 S.W. 898 (1920); Berning v. Commonwealth, Ky., 550 S.W.2d 561 (rendered April 22, 1977).

We are not at liberty to ignore the procedural prerequisites in preserving alleged errors for review by this court. RCr 9.22 and 10.12. In Turner v. Commonwealth, Ky., 460 S.W.2d 345 (1970), this court said:

“ * * * The policy of RCr 9.22 and 10.12 is to require a defendant in a criminal case to present to the trial court those questions of law which may become issues on appeal. The appellate court reviews for errors, and a non-ruling is not reviewable when the issue has not been presented to the trial court for decision. * at *

In view of the foregoing, this court is not at liberty to review the alleged procedural errors.

The judgment is affirmed.

All concur.


text:
    Trina Jo CONLEY, an infant, by and through her father and next friend, Joe G. Conley, Jr., Appellant, v. Mary Lou SOUSA (Formerly Mary Lou Gorman, d/b/a Cherokee Stable), Appellee.
    Supreme Court of Kentucky.
    July 1, 1977.
    Robert G. Stallings, Louisville, for appellant.
    Richardson, Barrickman & Dickinson, Glasgow, for appellee.
   LUKOWSKY, Justice.

Conley is a minor who was injured in Kentucky when she was thrown from a horse rented from Sousa in Kentucky. Sousa was a resident of Kentucky at the time of the injury, but moved to Ohio prior to the filing of the complaint. The sole issue on this appeal is whether Kentucky’s long-arm statute is long enough to reach Sousa. The trial judge held that it was not and dismissed the suit. We reverse.

KRS 454.210, Kentucky’s long-arm statute, provides in pertinent part:

“(1) As used in this section, ‘person’ includes an individual his executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, who is a nonresident of this commonwealth.
(2)(a) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s:
1. Transacting any business in this commonwealth;
2. Contracting to supply services or goods in this commonwealth;
3. Causing tortious injury by an act or omission in this commonwealth; .” (Emphasis supplied)

Read literally it would appear that the statute applies only to those who are nonresidents at the time they act in the manner described in KRS 454.210(2)(a). It is true that KRS 454.210(1) defines “person” as including a nonresident individual, but it does not specifically exclude resident individuals who become nonresidents. It has been held that a statutory definition of a term as “including” certain things or persons does not necessarily put a meaning thereon limited to the inclusion. 73 Am. Jur.2d, Statutes, sec. 212, n.65. This rule is applicable to the situation we have here. If we were not to apply it, we would have to attribute to the legislature the anomalous intent to give more protection to a resident who deliberately flees the jurisdiction of Kentucky’s courts than to a nonresident who acts in perfect good faith.

The Ohio long-arm statute contains language identical to Kentucky’s. It served as the model for our legislature. It has been interpreted by the Supreme Court of Ohio to extend in personam jurisdiction to those who were residents at the time the claim arose and who thereafter became nonresidents. Jackson v. Keske, 20 Ohio St.2d 89, 253 N.E.2d 778 (1969). That case noted that the Uniform Interstate and International Procedure Act, which served as the model for the Ohio Act, defines “person” to include individuals whether residents of the forum state or otherwise. The Ohio court rejected the argument that the Ohio legislature adopted an alternative definition of “person” in order to restrict the in person-am jurisdiction of its courts. Rather, it found that the explanation for this change in language was that the legislators did not want to tamper with the Ohio venue requirements for resident defendants. The court noted that if the language of the Uniform Act had been adopted, it could conceivably have led to county to county “longarmism.”

While there is nothing wrong with the reasoning of the Ohio court, we need not speculate about the intent of our legislature. The preamble to Kentucky’s long-arm statute discloses legislative intent. Nichols v. Wells, 2 Ky. 255 (1803). It provides:

“WHEREAS, persons have acted directly and through agents in the Commonwealth of Kentucky.
WHEREAS, those persons have caused injury and property damage and financial inequities in the Commonwealth.
WHEREAS, remedy cannot presently be had against those persons in our Courts due to their non-residence within the Commonwealth.
WHEREAS, the progress and tranquility of our Commonwealth can be best assured through the complete settlement of disputes.”
Acts of 1968, Ch. 46.

It is apparent that the legislature intended to permit the courts of Kentucky to exercise personal jurisdiction over those who acted in the Commonwealth so as to have caused injury here and who were not answerable in our courts because of their nonresidence. It is obvious that nonresidence is not disease at the time of the act and the injury. It becomes a disease needing legislative cure only after an action is commenced and summons can not be served because of it.

A primary rule of statutory construction was stated nearly 400 years ago:

“And it was resolved by them, that for the sure and true interpretation of all statutes . . . four things are to be discerned and considered: 1st, What was the common law before the making of the act; 2nd, What was the mischief and defect for which the common law did not provide; 3rd, What remedy the parliament hath resolved and. appointed to cure the disease of the commonwealth; and 4th, The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.”
COKE, Heydon’s Case (1584) 3 Rep. 7a, 7b (Known as the “mischief rule”)

Accordingly, we will assist the legislature in suppressing the mischief and advancing the remedy by construing the statute to permit Kentucky courts to exercise in personam jurisdiction over persons who were residents of Kentucky when a claim arose and who became nonresidents prior to the filing of a suit against them.

In Johnson v. Smith, Ky.App., 551 S.W.2d 834 (decided May 27, 1977) the Court of Appeals reached the same result we reach today. Of course, that result is proper for the reasons stated in this opinion.

The judgment is reversed and the cause is remanded to the Barren Circuit Court for further proceedings consistent herewith.

All concur.


author: HAYES, Judge.

text:
    Matthew K. HOUSTON and Carl Houston, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1977.
    Rehearing Denied Aug. 12, 1977.

      Henry E. Hughes, Thomas H. Burnett, Henry S. Johnson, Lexington, for appellants.
    Robert F. Stephens, Atty. Gen. by Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, HOWARD and WIN-TERSHEIMER, JJ.
   HAYES, Judge.

Matthew K. Houston and his father, Carl, were convicted in Fayette Circuit Court of Assault (KRS 508.040) upon a Lexington, Kentucky, police officer, and each was sentenced in accordance with the jury verdict to two (2) years in the penitentiary.

The issues involved on appeal are whether there was sufficient evidence to submit the case to the jury and whether instruction designated as number eleven (11) was proper. We answer both questions in the affirmative and affirm the judgment.

The appellant, Carl Houston, Jr., is a cattle rancher with a 560 acre farm in Fa-yette County. After a day of chores at the ranch, Carl, his two sons, the appellant, Matthew K., and Larry, and friends, Gary Isaacs and Kenneth Crowe, arrived at the Inn-Between Lounge, at about 8:30 p. m. About thirty (30) minutes later, as a result of the bartender not serving one of the crew because he was too young, the Inn-Between Lounge was a shambles. Tables were overturned and the doors to the establishment were almost kicked off the hinges. The crew denied the bartender the use of the telephone, so she could not call the law. The victim, Jack White, an off duty city policeman, was working next door to the tavern as a security guard. Someone advised him of the ruckus at the tavern and asked for his assistance. He went to the tavern parking lot where he encountered Isaacs and Larry Houston. From this point on the testimony is conflicting as to who started the fight and who stabbed Officer White, but generally it was established that White and Isaacs struggled as White was attempting to arrest Isaacs. The end result was that White was stabbed in the back by someone he did not see. There was testimony that while White and Isaacs were fighting on the ground, someone unknown grabbed White from behind. White was also hit and kicked in the face by someone in a yellow hat. White never saw Isaacs with a knife nor did he see Larry Houston with one. White testified that in his opinion, either Matthew K. Houston or Isaacs stabbed him.

A knife was found at the scene and it was later identified as one belonging to Carl Houston. Matthew K. Houston admitted to the police that he was the one who kicked and hit White, but denied stabbing him. He also had a knife. No knife was found on Isaacs or Larry Houston.

The trial court gave instructions on Assault, First and Second Degree, and all possible combinations of principal, aider and abettor and accomplice instructions since it was unknown who actually stabbed White.

The record contains sufficient evidence placed before the jury to sustain the verdict. Generally, the jury will not be allowed to determine guilt or innocence based upon evidence submitted to them unless first the trial judge believes a verdict of guilty would be a reasonable one. What kind and amount of evidence this would require has been determined by the Kentucky Court of Appeals.

First, we have the “Scintilla Rule” as stated in Harlan v. Commonwealth, 253 Ky. 1, 68 S.W.2d 443 (1934). This rule was abolished and in Carpenter v. Commonwealth, 287 Ky. 819, 155 S.W.2d 240 (1941) the rule wás formulated that if the verdict was so flagrantly against the evidence as to shock the conscience or lead to the conclusion that the verdict was a result of passion or prejudice rather than the considerate deliberation of the jury, then the evidence would not sustain the verdict.

Then, in 1959, in the case of Turner v. Commonwealth, Ky., 328 S.W.2d 536 (1959) the court said that circumstantial evidence alone is sufficient to sustain a conviction, provided the circumstances are so unequivocal and incriminating as to exclude every reasonable hypothesis of innocence, but if the circumstantial evidence is as consistent with innocence as with guilt then the evidence is insufficient to sustain a verdict of guilty. This is the rule of law the appellants would have this court apply. However, we apply the law as it is stated in Hodges v. Commonwealth, Ky., 473 S.W.2d 811 (1971).

In Hodges, supra, the court stated:

If the totality of the evidence is such that the judge can conclude that reasonable minds might fairly find guilt beyond a reasonable doubt, then the evidence is sufficient, albeit circumstantial. If the evidence cannot meet that test, it is insufficient. Cf. United States v. May, (CA6) 430 F.2d 715 (1970).

This rule of law has since been followed in Carmen v. Commonwealth, Ky., 490 S.W.2d 744 (1973).

In the instant case, the evidence was of a brawl between Officer White and a friend of his on the one side, and the Houstons and Isaacs on the other side. The appellants were participants and the failure to identify the one doing the actual stabbing was immaterial as to their joint guilt where they all participated in the affray and acted in concert, Maloney v. Commonwealth, 305 Ky. 549, 204 S.W.2d 939 (1947). In Maloney, the victim was assaulted by four (4) defendants and one cut the victim with a knife. The trial court instructed that the jury could find each defendant guilty as a principal and the others as aiders and abettors. This brings us to the second issue raised by the appellants.

The only objection the appellants have to the court’s instruction number eleven (11) is that it permits the appellants to be convicted as principals or accomplices when there was no evidence that they were either. In other words, the objection is not as to form but that the evidence did not support such an instruction.

Instruction number eleven (11) reads as follows:

If you believe from the evidence beyond a reasonable doubt that either one or both of the defendants, Carl Houston and Matthew Kenny Houston, is guilty under one or another of Instructions No. 7, No. 8, No. 9, or No. 10 of Count III but are unable to identify which of the defendants or Gary Lee Isaacs or Anthony Lawrence Houston stabbed Jack White, then you shall find that defendant or those defendants whom you believe to be guilty under one or another of those instructions, guilty under this instruction.

We believe the trial court had sufficient evidence before it to give instruction number eleven (11), Maloney v. Commonwealth, supra.

The Court of Appeals in Thorpe v. Commonwealth, 301 Ky. 541, 191 S.W.2d 572 (1945), a homicide case, stated that where there is no eyewitness to testify the trial court should instruct on murder and manslaughter, indicating that if there are no eyewitnesses to the actual act constituting the crime, the trial court should give the jury instructions on all the law applicable to all possibilities, subject, however, to the limitations of Shannon v. Commonwealth, Ky., 460 S.W.2d 346 (1970), which stated that instructions permitting a conviction upon a theory not sustained by the evidence may be prejudicial and constitute reversible error.

Instruction number eleven (11) must be read with all the other instructions given. The trial court instructed the jury in numbers one (1) through four (4) on each appellant as to first degree assault resulting in serious physical injury, KRS 508.010. The court instructed under numbers seven (7), eight (8), nine (9) and ten (10) on each appellant as to assault under extreme emotional disturbance, KRS 508.040. Instruction number five (5) referred back to the first four instructions and instruction number eleven (11) referred back to number seven (7) through ten (10). Both instruction number five (5) and eleven (11) are patterned after Palmore, Kentucky Instruc tions to Juries, Sec. 11.09. Other instructions were given that are not pertinent to this appeal. When the instructions are considered in toto, we believe instruction number eleven (11) states the law applicable to the facts in a form capable of being clearly and easily understood by the jury, Turner v. Commonwealth, Ky., 328 S.W.2d 536 (1959).

The judgment is affirmed.

All concur.


author: COOPER, Judge.

text:
    Thomas DOWDLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. CA-69-MR.
    Court of Appeals of Kentucky.
    June 24, 1977.
    Rehearing Denied Aug. 12, 1977.
    F. Dennis Alerding, Covington, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
    Before COOPER, LESTER and WHITE, Judges.
   COOPER, Judge.

Thomas Dowdle appeals from his conviction of kidnapping in violation of KRS 509.-040 and the ten (10) years sentence which was imposed as a result of that conviction. He was indicted for this offense along with James Grimes, Larry Corya and Ron Som-horst. Larry Corya and Ron Somhorst have pleaded guilty to the same charge and received ten (10) year sentences. The record reveals that the four named above met in the Somhorst apartment on March 1, 1975, and devised a plan to rob an A & P grocery store located in Covington, Kentucky. According to the plan, Corya and Somhorst were to go to the home of the manager of the A & P store, Mr. John Lother, at 8:30 p. m. on that evening of March 1,1975. Upon arriving at Mr. Lother’s home, they were to detain his family; meanwhile, Dowdle, the appellant in this case, and Grimes were to go to the A & P store and deliver a note to Mr. Lother which stated unless he turned over a large sum of money to Dowdle and Grimes, he would never see his family again.

On the night of this attempted robbery, Mr. Lother closed the A & P store at an earlier time than normal and when Grimes and the appellant, Dowdle, attempted to deliver their message to Mr. Lother, they were unable to do so. Meanwhile, Corya and Somhorst went to the home of Mr. Lother and at gunpoint tied up Mrs. Lother and her son, Jeff. After approximately one-half hour and after receiving no telephone call from Corya or Somhorst in regard to whether the A & P store had been successfully robbed, they left the Lother home.

The Commonwealth attempted to prove its case against the appellant principally by the testimony of Ron Somhorst, Larry Cor-ya, and Peggy Somhorst, who at the time was the ex-wife of Ron Somhorst. Peggy Somhorst was living with Ron Somhorst and was present at his apartment when the plan to rob the A & P store was made.

Ron Somhorst gave a pre-trial statement that Dowdle, the appellant herein, was a part of the plan to rob the A & P store and a participant on the night of March 1,1975; but on trial he repudiated his previous statements and testified that the appellant did not participate in the formulation of the plans or their implementation. Peggy Som-horst, who was present at the conception of the plan, testified that the appellant was present at the formulation of these plans and that he helped in their implementation on March 1, 1975. Larry Corya, another accomplice of the appellant, testified that the appellant took a part in the formulation and implementation of the plans to rob the A & P store.

The major issue before the Court is whether Peggy Somhorst was an accomplice to the appellant in the violation of KRS 509.040, and if she were did the Court err in failing to instruct the jury to enter a verdict of acquittal based on RCr 9.62. RCr 9.62 states as follows:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. In the absence of corroboration as required by law, the court shall instruct the jury to render a verdict of acquittal.”

The testimony is substantial indicating that the appellant, Dowdle, did participate in the kidnapping in violation of KRS 509.040. However, the record also reveals that the testimony of Peggy Somhorst is the only testimony presented which could be considered corroborating the testimony of Cor-ya. If it is determined that Peggy Som-horst was an accomplice of the other parties, then the Court would have no choice but to direct a verdict of acquittal of the appellant.

The appellant relies on KRS 502.020 in contending that Peggy Somhorst was, by statute, an accomplice of the other parties. That statute reads as follows:

“(1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
(2) When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he:
(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or
(b) Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or
(c) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.”

The appellant contends that under the evidence Mrs. Somhorst committed some or all of these proscribed acts.

The leading cases dealing with the definition of an accomplice are Durham v. Commonwealth, Ky., 398 S.W.2d 696 (1966) and Mouser v. Commonwealth, Ky., 491 S.W.2d 821 (1973). In the Durham case, supra, it is held that:

“. . .an accomplice is one that who knowingly voluntarily, and with common intent, unites with the principal in the perpetration of the crime, either by being present and joining in the criminal act by aiding and abetting in its commission, or, if not present, by advising and encouraging the performance of the act.”

In the Mouser case, supra, it is stated that to determine if one is an accomplice the question is:

“. . . whether he could have been convicted as a principal, aider and abettor, or accessory before the fact.”

The Durham case, the Mouser case and KRS 502.020 point clearly to the fact that before one can be an accomplice he must intend to participate in the promotion, facilitation or commission of the offense. There is no evidence in the record which indicates that Peggy Somhorst intended to promote, facilitate or commit the offense of kidnapping.

The appellant contends that under KRS 502.020(1)(c) she was an accomplice because of her duty to prevent the commission of the offense. We know of no legal duty imposed on Mrs. Somhorst to prevent the kidnapping. Her knowledge that the kidnapping was going to occur will not make her guilty of the crime. Elmendorf v. Commonwealth, 171 Ky. 410, 188 S.W. 483 (1916).

The appellant also contends that Mouser would demand that the question of one’s being an accomplice be left to the jury. This is simply not the law. The rule is that if there is a reasonable doubt as to whether one had the intent to promote or facilitate the commission of the offense, that question must be left to the jury as a question of fact. Mouser, supra; Durham, supra. In the instant case, the only relation which Peggy Somhorst had to the offense was being present when the scheme was conceived. There is no other evidence that she had any role in the plan to rob the A & P store.

We hold that it was proper for the Court to rule as a matter of law that Peggy Somhorst was not an accomplice and that her testimony could be considered as corroborating the testimony of the accomplices. The appellant raises other issues which he contends were reversible error on the part of the Trial Court. After review of the record we find that these incidents did not substantially prejudice the rights of the appellant.

We affirm.

All concur.


text:
    Charles FISH, Appellant, v. Claude "Buddy” ELLIOTT, Individually, etc., et al., Appellees. Claude "Buddy” ELLIOTT, Individually, etc., et al., Cross-Appellants, v. Charles FISH, Cross-Appellee.
    Court of Appeals of Kentucky.
    July 22, 1977.

      Edwin Morton White, Chewning, White & Underwood, Hopkinsville, for Claude Elliott.
    Wilburn C. Keith, W. Douglas Myers, Keith & Myers, Hopkinsville, for Charles Fish.
    Before COOPER, LESTER and WHITE, JJ.
   COOPER, Judge.

This appeal arises from a suit filed by the appellant, Charles Fish, against the City Judge, the Mayor, and the Board of Trustees of the City of Oak Grove, Kentucky. The specific allegations were that the Board of Trustees did not publish financial statements for the City of Oak Grove pursuant to KRS 424.220; that they had not adopted and published a budget pursuant to KRS 424.240; that they had enacted an ordinance providing for a license fee which did not conform to the requirements of KRS 92.380; that they had not advertised for bids to obtain facilities for the City Hall pursuant to KRS 424.260; and, that the defendants had improperly set attorney fees pursuant to KRS 69.550 and KRS 64.-580. Both parties appeal from a summary judgment which held that the City of Oak Grove must publish a financial statement and a budget, but dismissed the other allegations in the complaint.

The first issue raised by the cross-appellant is whether the appellant has standing to bring the action. A portion of 42 Am. Jur.2d Injunctions § 179 at 949 reads as follows:

. in the absence of statute, private citizens or corporations must possess something more than common concern for obedience to law before they will be permitted to maintain injunction suits against public officers. A private person who wishes to restrain an official act must allege and prove damage to himself different in character from that sustained by the public generally. The reason for the rule rests in the sound public policy of protecting the public corporation or its officers from a multiplicity of suits.

The Supreme Court of Kentucky has consistently held that naked municipal citizenship is not sufficient to confer standing to challenge an official act of municipality. In the case of Carrico v. City of Owensboro, Ky., 511 S.W.2d 677 (1974), the Court held that Carrico did not assert his claim on the basis that he would sustain some injury which was special or peculiar to himself. In the absence of that assertion the Court held that he lacked standing to bring suit. The Court further held that the assertions of Carrico did not show that the acts he sought to prohibit were prejudicial to his rights as a taxpayer or would result in loss to the municipality. The Court held that those assertions were essential to sustain his standing to sue. In the case of Wegener v. Wehrman, 312 Ky. 445, 227 S.W.2d 997 (1950), the Court held that the appellant’s interest in a right asserted had to differ from the public generally. In the case of York v. Chesapeake & Ohio Railroad Company, 240 Ky. 114, 41 S.W.2d 668 (1931), the Court required that there be an allegation and proof that the plaintiff would suffer some injury distinct from that of the general public before he could have standing to enjoin an official act.

There are no remedial provisions in the statutes allowing a citizen to contest the improper payment of fees to a city employee. Where no statute confers this standing and where the complaint does not allege and no proof shows a special or peculiar injury to the complainant, those charges must be dismissed by the court. The record is totally void as to the residence, status, citizenship, or interests of the appellant much less what peculiar or special injury he may have suffered as a result of the actions of the appellees. Consequently, the court properly dismissed the allegations of improper payments of fees to the city attorney.

The Court of Appeals has held that the legislature may, by statute, confer standing on individual citizens. Martin v. Thompson, Ky., 253 S.W.2d 15 (1952); Kentucky State Board of Dental Examiners v. Payne, 213 Ky. 382, 281 S.W. 188 (1926). The balance of the allegations in appellant’s complaint, which we outlined in the beginning of this opinion, have a statutory remedy provided by the legislature which confers standing on citizens of the governmental unit to bring actions to compel adherence to the law.

KRS 424.990 states as follows:

“Any person who violates any provision of KRS 424.110 to 424.370, shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00). In addition, any officer who fails to comply with any of the provisions of KRS 424.220, 424.230, 424.240, 424.250, 424.290, or 424.330 shall, for each such failure, be subject to a forfeiture of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) in the discretion of the court, which may be recovered only once, in a civil action brought by any citizen of the city, county or district for which the officer serves, (emphasis ours) The cost of all proceedings, including a reasonable fee for the attorney of the citizen bringing the action, shall be assessed against the unsuccessful party.

KRS 92.340 states as follows:

“If, in any city of the second to sixth class, any city tax revenue is expended for a purpose other than that for which the tax was levied or the license fee imposed, each officer, agent or employee who, by a refusal to act could have prevented the expenditure, and the members of the city legislative body who voted for the expenditure, shall be jointly and severally liable to the city for the amount so expended. The amount may be recovered of them in an action upon their bonds, or personally. The city attorney shall prosecute to recover all such actions. If he fails to do so for six (6) months after the money has been expended, any taxpayer may prosecute such action for the use and benefit of the city, (emphasis ours) A recovery under this subsection shall not bar a criminal prosecution under subsection (5) of KRS 92.990. Any indebtedness contracted by a city of the second to sixth class in violation of this subsection or of KRS 92.330 or 92.360 shall be void, the contract shall not be enforceable by the person with whom made, the city shall never assume the same, and money paid under such contract may be recovered back by the city.

Clearly standing is conferred, by these statutes, on citizens of the governmental unit to enforce by suit the requirements of the law. However, the question here is whether a citizen in a suit against a municipality must allege and prove, if denied, his citizenship in those instances where the statutes confer on citizens or taxpayers of a governmental unit the standing to bring the suit. The Supreme Court of the United States has held that there must be a logical nexus between the status asserted and the claim sought to be adjudicated, and that the taxpayer must establish a logical link between that status and the type of legislative enactment attacked before the taxpayer may have standing to bring suit. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Where the legislature provides that a citizen of a governmental unit may bring suit to compel adherence to the law by that unit, the logical nexus and the logical link between the taxpayer and the official act is provided by the legislature. No peculiar interest or damage need be alleged or proven by that citizen to gain standing to bring a suit contesting the official act. After a reading of the remedial statutes quoted above, which among other things state that recovery for violation of the statute may be recovered only once, it would seem that the legislature intends that the certainty of one’s citizenship and consequent standing be clearly established. The nexus of one’s relationship to the governmental unit, therefore, should be on the face of the pleading. The record in the instant case contains no allegations whatever which would give the Court any indication as to the residence or citizenship of the appellant and that, consequently, he has statutory standing pursuant to KRS 424.990 and KRS 92.340.

We hold that in the absence of these proper allegations, the lower court should have dismissed appellant’s entire complaint for lack of jurisdiction.

Because of this disposition we do not discuss the other issues raised by the parties.

The judgment of the Christian Circuit Court is reversed with directions for further proceedings consistent with this opinion.

All concur.


author: VANCE, Judge:

text:
    Donna Jean THOMAS, Appellant, v. James B. THOMAS et al., Appellees.
    Court of Appeals of Kentucky.
    July 22, 1977.
    Darryl T. Owens, Louisville, for appellant.
    Donald H. Smith, L. Kent Robinson, Louisville, for appellees.
    Before MARTIN, C. J., and HOGGE and VANCE, JJ.
   VANCE, Judge:

This is an appeal from a judgment which set aside, on the petition of an adoptive father, a judgment of adoption obtained by him. The grounds asserted were fraud and undue influence.

Appellant, Donna Thomas, wanted her husband, James, to adopt her illegitimate child. On many occasions when they were having marital difficulties, Donna would voice a complaint that James refused to adopt her daughter. James became convinced that his marital difficulties would disappear or greatly improve if he adopted the girl and he proceeded to do sp. A short time after the adoption was granted, Donna moved from James’s house and later sued him for divorce, custody of the child and child support. James then sought to vacate the judgment of adoption.

Pierce v. Pierce, Ky., 522 S.W.2d 435 (1975) is authority for the annulment of a decree of adoption at the instance of an adopting parent but clearly indicates that an adoption should not be disturbed unless an annulment is shown to be in the child’s best interests. Therein it was said:

“This court will not be part or parcel of setting aside completed adoption proceedings by dissatisfied adopting parents.
* * * # # *
“. . .it appears to be generally held that an adoption decree will not be vacated or annulled at the instance of an adoptive parent where his motives are purely selfish, or because of pecuniary interest in changing his position. Courts should not allow abrogation of an adoption if it is premised on the desire of adoptive parents to rid themselves of a bad bargain, or because of a mere change in attitude or regret. . . .”
“To warrant a finding of undue influence in inducing the adoption of a child, it must appear that the person exercising the influence so far dominated the will of the person upon whom it was exercised as to substitute his will for that of the latter, with the result that the action brought about was not, in reality, that of the person whose act it was in form, but rather, was that of the person exercising the influence. . .

The court did not, and could not from the evidence, make a finding of facts from which it could be reasonably concluded that James was so dominated that he could not exercise his free will. It may be that Donna’s real reason for wanting the adoption was to fasten some financial responsibility upon James but this does not constitute fraud for which an adoption may be set aside. James recognized the potential financial responsibilities but elected to accept them in the hope of improving his marital life. The failure of that hope to materialize is not a sufficient reason to undo the adoption. We conclude that ap-pellee failed to meet the strict standards established in Pierce for the annulment of an adoption.

The judgment is reversed with a direction that a new judgment be entered which dismisses appellee’s motion to set aside the adoption.

All concur.