Wolbrecht v. Commonwealth

COOPER, Justice,

dissenting.

An indictment may be amended “any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” RCr 6.16. The amendment in this case was granted more than two weeks prior to the conclusion of the trial. The amendment did not charge an additional or different offense and no additional evidence was required to prove the amended charge. Schambon v. Commonwealth, Ky., 821 S.W.2d 804 (1991). Both the original indictment and the amended indictment charged Appellants with murder either as principals or by complicity. An amendment which only alleges a different method of committing the same offense does not prejudice the substantial rights of the defendant. Cf. Robards v. Commonwealth, Ky., 419 S.W.2d 570 (1967).

Prior to the adoption of the penal code, the Commonwealth was required to prove the guilt of the principal before the defendant could be convicted of complicity. E.g., Rutland v. Commonwealth, Ky., 590 S.W.2d 682 (1979) (offense committed prior to effective date of the penal code, but conviction obtained thereafter). KRS 502.030(1) now makes the disposition of the charge against the principal immaterial to the liability of the accomplice. Logically, however, the Commonwealth’s inability to prove the identity of the principal offender inures to the benefit of a defendant charged with complicity. How could an amendment of the indictment to *539conform to this failure of proof prejudice the substantial rights of the defendant?

Even under pre-code law, an indictment for complicity was not defective because it failed to identify the principal. Wheeler v. Commonwealth, Ky., 395 S.W.2d 565 (1964), cert. denied, 385 U.S. 826, 87 S.Ct. 58, 17 L.Ed.2d 62 (1966); Howard v. Commonwealth, 110 Ky. 356, 61 S.W. 756 (1901). If the identity of the principal is not required in an indictment for complicity, the attempted identification of the principal in the original indictment in this case was unnecessary and the amendment only deleted what should be regarded as surplusage.

Nor did the trial judge abuse his discretion in denying the motion for a continuance. The defense in this case was a denial of any involvement in Robert Wolbreeht’s death and an attempt to explain away the incriminating evidence presented by the Commonwealth. Appellants do not suggest what they might have done differently if given additional time to contemplate the Commonwealth’s failure to prove the identity of the principal as reflected in the amended indictment. I would affirm the judgments of conviction and the sentences imposed by the Henderson Circuit Court.

Graves and Wintersheimer, JJ., join this dissenting opinion.