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designate some other officer or person to summons jurors, relates only to petit jurors. Id.

4. Where the grand jury is composed of jurors selected by commissioners, as directed
by the Revised Statutes, the court say they incline to the opinion that the summoning of
them by a person other than the sheriff or coroner would not be "a substantial error." Id.

5. An indictment may, on motion made at the proper time, be set aside on the ground
that a grand juror lacked either of the qualifications prescribed by the statute, viz.: citizen-
ship, housekeeping in the county, and over the age of twenty-one years (10 Busk, 476; 14
M-t 457)» Dut l ac k °f competency, as, the holding of a civil office or owning a grist-mill, is
not ground for setting aside an indictment. 1 1 Bush, 277; 81 Ky., 487.

§ 102 [99, 105]. Investigation and indictment by grand jury. It is the
duty of the grand jury to inquire :

1. Into the case of every person imprisoned in the county jail, or on
bail, to answer a criminal charge in that court, and who is not indicted:

2. Into the condition and management of the public prisons in the
county ;

3. Into the willful and corrupt misconduct in office, of public officers
of every description, in the county ;

4. Concerning all public offences of which the court in which they
are empanneled has jurisdiction : and to indict such persons as they may
find guilty thereof.

§ 103 [106]. Entitled to free access to prisons and records. They are
entitled to free access, at all reasonable times, to the public prisons, and
to the examination, without charge, of all public records in the county.

§ 104 [104]. Duty of grand jurot to disclose offences. If a member
of the grand jury know, or have reason to believe, that a public offence
has been committed within the jurisdiction of the court, he must de-



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chap. I.] GRAND JURY, ITS POWERS AND DUTIES. 3 1

clare the same to his fellow jurors, who must thereupon investigate the
same.

§ 105 [112]. Clerk to issue subpoenas. The clerk, on the request of
the foreman of the grand jury, or of the Commonwealth's Attorney,
during a term or in vacation, shall issue subpoenas for witnesses to
appear before the grand jury, and upon the witnesses failing to attend,
in obedience thereto, the court shall proceed to coerce their attendance,
and may punish their disobedience by fine and imprisonment, as in the
case of witnesses failing to attend on the trial.

§ 106 [101]. Foreman may administer oaths. The foreman of the
grand jury shall have power to administer the oath to the witnesses
appearing before the grand jury.

§ 107 [102]. What evidence grand jury shall receive. The grand jury
can receive none but legal evidence (a) ; they are not bound to hear
evidence for the defendant; but it is their duty to weigh all the evidence
before them, and if they believe that other evidence, within their reach,
will explain away the charge, they should order the evidence to be
produced.

(a) But the court has no power to set aside an indictment on the ground that illegal
evidence was received. \ 158; 89 Ky. t 555.

§ 108 [1 13]. How witness compelled to testify. When a witness under
examination refuses to testify, or to answer a question put to him by
the grand jury, or by the attorney for the Commonwealth, the foreman
shall proceed with the witness into the presence of the court, and there
distinctly state the refusal of the witness, and if the court, upon hearing
the witness, shall decide that he is bound to testify or answer the ques-
tion propounded, he shall inquire of the witness if he persists in his
refusal, and if he do, shall proceed with him as in cases of similar refusal
in open court.

§ 109 [107]. Advice of court and attorney for Commonwealth. The
grand jury may, at all reasonable times, ask the advice of the court,
or the attorney for the Commonwealth ; and such attorney may, when
requested by the grand jury, interrogate witnesses before it.

§ 1 10 [108]. Who may be present with grand jury. No person, except
the attorney for the Commonwealth and the witness under examination,
shall be present while the grand jury are examining a charge; and no
person whatever while they are deliberating, or voting, on a charge.

§ ill [103]. When grand jury should indict. The grand jury should
find an indictment when all the evidence before them would, in their
judgment, if unexplained, warrant a conviction by the trial jury.

§ 1 12 [109]. Proceedings to be kept secret. Every member of a grand



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32 GRAND JURY, ITS POWERS AND DUTIES. [TITLE yi.



jury must keep secret whatever he himself, or any other grand juror,
may have said, or in what manner he, or any other grand juror, may
have voted on a matter before them.

The testimony of a grand juror is not admissible to explain or impeach their finding
(3 Bush, 19); but is competent to prove that he was not qualified to serve as a grand juror.
14 Bush, 458.

§ 1 13 [1 10]. What grand juror may be compelled to disclose. A mem-
ber of the grand jury may, however, be required by a court to disclose
the testimony of a witness examined before the grand jury, for the pur-
pose of ascertaining its consistency with the testimony given by the
witness on the trial, ortfor the purpose of proceeding against the witness
for perjury [or false swearing (Act of 1892, S. A., 11)] in his testimony,
or upon the trial of a prosecution of the witness for perjury [or false
swearing]; and it shall be the duty of the foreman of the grand jury to
communicate to the attorney for the Commonwealth, when requested,
the substance of the testimony before them.

Section 113 did not apply to the statutory offence of false swearing. 92 Ky. % 120.

§ 1 14 [1 1 1]. Not responsible for acts or votes, except perjury. A grand
juror can not be questioned for anything he may say, or any vote he
may give, relative to a matter legally before the grand jury, except for a
perjury he may have committed in making an accusation, or giving tes-
timony, before his fellow-jurors.

§ 115 [114]. Papers, &c, to be laid before grand jury, and acted on.
All the papers and other matters of evidence relating to the arrest of,
and examination of the charge against, persons committed, or on bail,
returned to court by magistrates, shall be laid before the grand jury, and
if, upon investigation, they refuse to find an indictment, they shall write
upon some one of the papers " dismissed,' ' with the signature of the
foreman, and thereupon the court shall discharge the defendant from
custody, if in jail, or exonerate the bail, if bail have been given, and
order the return of any money which may have been deposited, in lieu
of bail, to the person depositing it, unless the court be of opinion that
the charge should be submitted to another grand jury, in which case the
defendant may be continued in custody, or on bail, until the next term
of the court.

§ 1 16 [1 1 5]. Court may order a charge to be reconsidered, after dismissal
by grand jury. The dismissal of the charge does not prevent it being
again submitted to a grand jury, as often as the court may direct, but
without such direction it can not again be submitted.

§ 117 [116]. Defendant discharged if no indictment found at second
term. Unless an indictment be found at the term of the court next after



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HAP. II.] INDICTMENT. 33

ie first submission of the charge to the grand jury, the 9ame proceed-
lgs shall be had as directed in § 115 upon "a dismissal of the charge,
nless (a) the court otherwise direct (6).

(a) Section 116 of the Code of 1854 contained the words "for cause shown,'* after the
rord *• unless;" and it was held that the cause and direction must appear upon the record,
r the bail would be exonerated. 4 Met., 219; 1 Duv., 235.

(6) When the grand jury fails to indict, bail is exonerated though no order be entered
iischarging the bond, 4 Met., 219; 3 Bush, 9, 12.



CHAPTER II.
Indictment*

Art. 1. The finding of an indictment.
,l 2. The form and requisites of an indictment.

ARTICLE I.

The Finding of an Indictnient.

\ 118. Indictment defined.

I 119. Twelve grand jurors must concur in finding an indictment, and the foreman must

indorse it.
\ 120. Names of all witnesses examined must be written on indictment.
1 121. Presenting indictment to the court.

§ 118 [117]. Indictment defined. An indictment is an accusation in
writing, found and presented by a grand jury to the court in which they
are empanneled (a), charging a person with the commission of a public
offence (6).

(a) There may be a new indictment in the court to which the case has been removed
by change of venue. 12 Bush, 191.

(b) The court can not, even with the consent of the accused, change an indictment for
one felony into an indictment for another. 92 Ky., 134.

§ 119 [118]. Ninef grand jurors must concur in, and foreman must
indorse. The concurrence of [nine]f grand jurors is required to find an
indictment; when so found, it must be indorsed "a true bill" (a), and
the indorsement signed by the foreman.

{a) Unless so indorsed, it should be dismissed on demurrer. Oliver v. Com., 15 Ky. L.
R., 662. Failure to demur is a waiver of objection as to indorsement and signature of the
foreman. 86 Ky., 313.

§ 120 [1 19]. Names of witnesses must be placed on indictment. When
an indictment is found, the names of all the witnesses who were exam-
ined must be written at the foot of, or on, the indictment.

•As to extradited criminals, see 13 Bush, 697. t Constitution, g 948.



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34 INDICTMENT. [TITLE TL

§ 121 [120]. Presenting indictment to court. The indictment must be
presented by the foreman, in the presence of the grand jury, to the court,
and filed with the clerk, and remain in his office as a public record.

1. As the order filing the indictment states that "the foreman of the grand jury re-
ported an indictment a true bill," it sufficiently appears that §§119 and 121 of the Code
were substantially complied with. 86 Ky. t 313.

2. An order of court, showing the presentiment of an indictment "for sheep-stealing,''
is a sufficient identification of an indictment for grand larceny by taking, carrying away,
and converting to his own use seven sheep, which was filed on the day on which the order
was made, as appeared from the clerk's indorsement on the indictment. 6 Busk y 431.

3. The indictment need not show on its face that it was presented on oath. 3 ji/<rA,2i,22.

ARTICLE II.

Form and Requisites of an Indictment.

2 122. What an indictment must contain.

2 123. Form of indictment.

2 124. In what it must be direct and certain.

2 125. Error in name of defendant may be corrected.

2 126. Indictment to charge but one offence, except as provided in \ 127.

§ 127. What offences may be joined.

§ 128. When erroneous allegation as to person injured, or owner of property, is not

material.
2 129. Allegation as to time not material, unless time be of the essence of the offence,
2 130. Presumptions of law, or facts judicially noticed, need not be alleged.
2 131. What necessary in pleading a judgment, &c.
2 132. What sufficient in indictment for libel.
2 133. Misdescription of a written instrument, withheld or destroyed by defendant, is

immaterial.
2 134. What sufficient in indictment for perjury, or subornation of perjury.
2 I 35« What sufficient in indictment for larceny, or embezzlement, of money, bank

notes, &c.
2 136. Statutory definition of offence need not be strictly pursued.
2 137. Construction of words used in an indictment.

§ 122 [121, 128, 129]. What an indictment must contain. The indict-
ment must contain —

1. The title of the prosecution, specifying the name of the court in
which the indictment is presented and the names of the parties (a).

2. A statement of the acts constituting the offence, in ordinary and
concise language, and in such a manner as to enable a person of common
understanding to know what is intended ; and with such degree of cer-
tainty as to enable the court to pronounce judgment, on conviction,
according to the right of the case {b).

(a) 1. As to stating the name of a railroad corporation, see 80 Ky, % 140.

2. Indictment not vitiated by omitting the defendant's Christian name. 3 Afft.,4H-

3. As to errors in naming defendants, see 2 125.



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HAP. II.] INDICTMENT. 35

(6) GENERAL RULES CONCERNING INDICTMENTS—
I. Certainty in indictments generally.
II. Indictments for common law felonies.

III. Indictments for statutory offences,

IV. Unnecessary allegations in indictments.
V. Indictments relating to divers offettces.

I. Certainty in indictments generally* —

An indictment must set forth the offence with such certainty as to apprise the defendant
if the nature of the accusation upon which he is to be tried, and to constitute a bar to any
ubsequent proceedings for the same offence. 3 Met., 5. Thus, it is insufficient to charge
hat the defendant permitted gaming in «« a house or on premises" in his control (3 Met., 5);
•r that the defendants did peddle and sell, in the county of M, buggies, pleasure carriages,
ic, not having a license to peddle the same, and said articles not being the product or
aanufacture of the State of Kentucky (3 Met., 222) ; or that the defendant "did feloniously
ender in payment to M. B. an altered bank bill of the Dayton Bank" (I Duv., 90) ; or that
he defendants "did forge the name of B. to an instrument of writing purporting to be the
>romissory note of S. & B., with intent to defraud" (12 Bush, 342, and see 13 Bush, 267);
»r that the defendant "did feloniously conceal the birth of a bastard child, the issue of her
>ody, by secreting the said child so that it might not be known whether or not it had been
>orn alive, said child being dead when found " (12 Bush, 373) ; and an indictment charging
hat the defendant "did unlawfully, wilfully, feloniously, and of his malice aforethought,
till and murder his wife, N. W., against the peace and dignity of the Commonwealth of
Kentucky," was held to be insufficient, because it failed to state the particular facts which
vere necessary to show the manner in which the crime may have been committed or the
neans of its perpetration. 9 Bush, 178. Following pages refer to a number of other cases
llustrating that rule.

II. Indictments for common law felonies —

Though it seems to have been held otherwise in fane v. Com., 3 Met., 18, it seems now
be settled that an indictment for murder or other common law felony must not only
iver malice or such other wrongful motive as applies to the crime, but must aver that it
iras committed "feloniously," or * 4 with felonious intent." 84 Ky., 354; 86 Id., 197;
Stroud v. Com., 14 Ky. L. /?., 179.

But an averment of felonious intent is not necessary as to a statutory felony, unless such
ntent be specified in the statute. Higgins v. Com., 14 Ky. L. R. % 729.

III. Indictments for statutory offences —
I. Generally —

(1) It is sufficient for an indictment to follow the language of the statute if it be de-
icriptive of the offence; 16 B. M., 1, relating to keeping a tippling-house; 2 Met., 3, relat-
ng to selling liquor on Sunday; 3 Bush, 1, relating to a game of chance; 5 Bush, 316,
elating to an assault with intent to rob; 6 Bush, 301, and 84 Ky., 276, relating to setting
ip a faro-bank; 6 Bush, 263, relating to unlawful, but not felonious, injury to property;
[3 Bush, 331, relating to the Ku-klux law; 14 Bush, 44, relating to tippling-houses ; 85
Ky., 614, and 88 Id., 349, relating to breaking a dwelling-house; 86 Ky., 196, relating to
hooting and wounding with a gun, without killing: but if an indictment under the last
lamed statute be for wounding with a stone or other instrument which is not specified in
he statute as a deadly weapon, viz., a gun, pistol, sword, or knife; or which is not mani-
estly a deadly weapon, such as an axe (3 Bush, 107), a chisel (8 Bush, 387), or a sledge-
lammer (86 Ky., 595), — the court should leave to a jury the question whether or not the
nstrument was a deadly weapon. 91 Ky., 592.

♦For exceptions, tee g 135, concerning errors as to the name of the defendant; § 138, as to naming
>erson injured and the owners of property injured or taken, &c.; g xao, as to stating dates of offences;
! 131, as to pleading a judgment; g 13a, as to indictments for libel; g 134, as to indictments for perjury or
subornation of perjury ; and g 135, as to describing money or currency stolen or embexzled.



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36 INDICTMENT. [title yi.

(2) But % 136 declares that "the words used in a statute to define an offence need not
be strictly pursued in an indictment, but other words conveying the same idea may be
used;" and it was held that, under the statute making it a felony to "wilfully and mali-
ciously shoot at and wound another, with an intention to kill him, so that he does not die
thereby, with a gun or other instrument loaded with a leaden bullet or other hard sub-
stance," an indictment for shooting and wounding with a pistol, with intent to kill, was
sufficient, though it failed to aver either that the wounded person did not die, or that the
pistol was loaded with a bullet, &c. (3 Met., 13); that the words "feloniously did assault
S. with a large knife and weapon, putting her, the said S., in great fear of some serious
and immediate injury to her life and limb, with the felonious intent to rob her," sufficiently
complied with the statute, which made it a felony " if any person, with an offensive weapon
or instrument, shall unlawfully and maliciously assault any other person with a felonious
intent to rob or commit a robbery upon such person" (3 Bush, 508); that "wilfully and
feloniously" are equivalent to "wilfully, maliciously, and unlawfully" (12 Busk, 243);
that "wilfully and maliciously" have their equivalents in "unlawfully, feloniously, and
maliciously" (81 Ky., 186), and in "unlawfully, wilfully, maliciously, and feloniously"
{Toiery. Com., 1 5 Ky. L. £., 292); that, under a statute forbidding the keeping of a
billiard-table "where money or anything of value is bet," it was sufficient to aver that it
was kept "for hire and profit" (5 Busk, 328) ; that the words "set up, exhibit, and keep
for himself and another " a faro-bank are equivalent to the statutory words "set up, exhibit,
or keep for himself or another" (84 Ky., 52); that "utter and publish" are equivalent 10
"utter or publish," and that "forged and counterfeited" are equivalent to either "forged
or counterfeited" (90 Ky., 488) ; and that, under a statute making it a felony to "forge or
counterfeit any writing whatever whereby fraudulently to obtain the possession of, or to
deprive another of, any money or property," it was sufficient to aver that the defendant
forged a witness-certificate against Mi Commonwealth "with the intent to cheat and defraud
it" (92 A>., 630).

(3) It has, however, been frequently held that an indictment must follow the language
of the statute; as, an indictment for "unlawfully" killing a horse, under a statute making
it an offence to kill a horse "wilfully" (8 Bush, 1) ; an indictment for selling liquor to a
minor " without the written consent and request of the father," under a statute forbidding
such sale "without the written consent or request" of the father (6 Busk, 91); and under
a statute forbidding the sale of liquor to a white person under twenty-one years of age, an
indictment which failed to state that the person to whom the liquor was sold was white
was insufficient (7 Bush, 105) ; and under a statute prohibiting the counterfeiting of the
notes of any bank or company incorporated by law in any part of the United States, it
was held that an indictment charging the counterfeiting of notes of the "Merchants Bank
of Massachusetts" was defective, because it did not aver that the bank was incorporated
(2 Met, 36) ; and a charge that defendant unlawfully and forcibly detained a woman is not
equivalent to an averment that he detained her against her will (81 Ky., 591) ; and an
indictment for aiding a prisoner to escape " beyond the custody of the jailer" was insuffi-
cient under a statute making it a penal offence to aid escape from such custody (11 Bush,
154); and an indictment for unintentionally causing death by wilfully striking, &c., should
follow the language of the statute by averring (at least in substance) that it was not done
in self-defence, &c, and that death ensued within six months. 13 Bush, 714.

(4) And if the offence be not described by the statute, the indictment must state ex-
trinsic facts showing its violation; as, an indictment for peddling (3 Met., 221); for ten-
dering an altered bank note (1 Duv., 90); for keeping a keno-table (6 Busk, 298); for
bigamy, (13 Busk, 318, overruling Com. v. IVhaley, 6 Bush, 266); for concealing the birth
of a bastard child (12 Bush, 373) ; for breaking a dwelling-house (14 Busk, 233); for pre-
scribing liquor by a physician (80 Ky., 178) ; for selling liquor, without naming any person
•to whom it was sold (18 B. M., 492) ; for "forgery" of a writing (12 Busk, 342; 13 U.,
267); for "uttering and publishing" a forged writing (13 Busk, 267; 90^/^,488); or an



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<c:MAP. ii.] INDICTMENT. 37

indictment under a statute which merely imposes a penalty for a common law offence (88

-*>., 349).

2. Indictments under statutes containing exceptions or provisos —

When provisos or exceptions are contained in a different statute than that defining an
offence (13 Bush, 348, 661), or in distinct clauses of a statute defining an offence, it is not
necessary to aver in the indictment that the defendant does not come within the exceptions,
or to negative the proviso, even though the purview should expressly notice them, as, by
saying that none shall do the act prohibited except in the cases thereinafter accepted:
these are properly matters of defence. 2 Met,, 8; 13 Bush, 348.

But if the statute creating an offence contain exceptions in its enacting clause, they
must be negatived by the indictment. 13 Bush, 721.

But a statute imposing a penalty for keeping any billiard-table, having been amended
"by an act declaring that nothing contained in the first named statute ''shall be construed
as applying to any billiard table kept by any citizens of this Commonwealth in their houses
for the amusement of themselves and their families, and not kept or used for hire or profit,
directly or indirectly ; " it was held that the amendment was a qualification of, and not a pro*
viso or exception to, the first named statute, and that an indictment for keeping a billiard-
table in defendant's house must aver that it was kept for hire or profit. 2 Bush, 33.

3. The indictment need not conclude "against the form of the statute." 15 B. M., 531.

IV. Unnecessary allegations in indictments —

It has been held that descriptive averments in indictments, though made unnecessarily,
must be proved as laid; as, in an indictment for passing counterfeit money, an averment
that it purported to have been issued by a specified bank (16 B. M,, 213) ; and an indict-
ment describing the character and circumstances of an alleged bet with particularity. I
Met., 368. But under an indictment for the statutory offence of playing cards with a
negro, the averment that "money and other property of the value of five dollars was bet,
-won, and lost" was held to be not descriptive of the offence, and therefore immaterial
{3 Met,, 479); and that rule applies to an indictment for obtaining money by false pre-
tenses (86 Ay,, 1). And an averment, in an indictment for perjury, that the defendant
Cook his "corporal oath" was held to be mere surplusage. 89 Ay., 143.

An indictment for manslaughter charged that the offence was committed "unlawfully,
wilfully, maliciously, feloniously, in a sudtien affray, and not in self-defence: maliciously was
held to be surplusage, Coe, Sr., v. Com,, 15 Ay. L, R., 284. So is an averment, in an
indictment for burglary, that defendant stole goods, &c. 5 Bush, 377-8. And in an indict-
ment for keeping a tippling-house, an averment that it was run without a license to keep a
tippling-house was mere surplusage. 16 B. M,,\,

V. Indictments relating to divers offences —

1. Abortion, see 78 Ky,, 204; 87 Id., 487.

2. Accessories.

(I) Accessories before the fact (G. S., ch. 29, art. I, £ 10).

An indictment of five persons for murder contained three paragraphs, the first charging
that all the defendants committed the crime; the second, that one of them, H, committed



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 122 of 142)