dissenting.
Respectfully, I dissent.
Since this is an appeal from a writ of prohibition relating to an issue of discovery, the record here is brief. Clarence Wooten was indicted and charged with theft of labor and theft of services, intentional crimes. There were a total of eleven counts against him. It appears he was involved in an ongoing business and may very well be unable to recall each individual transaction and the attendant circumstances, including who was present at the time. It is questionable whether he has better access to this information than the Commonwealth.
A bill of particulars is designed to allow a criminal defendant to prepare a defense against charges placed against him without “prejudicial surprise upon trial,” especially in light of the “shorter form of indictment.” Brown v. Commonwealth, Ky., 378 S.W.2d 608, 610 (1964), overruled on other grounds, Payne v. Commonwealth, Ky., 656 S.W.2d 719 (1983).
Material within the “possession, custody and control of the Commonwealth” is discoverable under RCr 7.24. Wagner v. Commonwealth, Ky., 581 S.W.2d 352 (1979). Judge Lowe specifically limited his order to the disclosure of “persons present within the knowledge of the Commonwealth.” (Emphasis added). By this order, the Commonwealth is neither required to investigate nor supply a list of witnesses who will testify at trial.
In Deskins v. Commonwealth, Ky., 512 S.W.2d 520, 524 (1974), the case of James v. Commonwealth, Ky., 482 S.W.2d 92, 93 (1972) is cited for the proposition that after indictment, it is within the discretion of the court whether to grant a motion for a bill of particulars and that decision will not be upset unless there has been an abuse of discretion. In James, supra, our Court upheld the appellant’s contention that:
*947“[T]he [trial] court erred in failing to require the Commonwealth to submit a bill of particulars as to what time of day the sales took place, where they took place, who was present, and factual statements of the essential elements of the transactions.” (Emphasis added).
The majority agrees with the contention of the Commonwealth that the trial court order had the effect of requiring the production of a witness list in contravention of our holding in King v. Venters, Ky., 596 S.W.2d 721 (1980). Appellant views the order as encompassing a proper area of discovery to enable the defendant to prepare a defense to the numerous charges. It is a close case. However, on review we should respect the decision of the trial judge and should not overrule that decision unless there is an abuse of discretion. I do not see any abuse of discretion. Judge Lowe acted within his authority under RCr 6.22. The Court of Appeals’ writ of prohibition was erroneous and should be set aside.