Commonwealth v. Adams
| Decision Date | 15 October 1891 |
| Citation | 92 Ky. 134 |
| Parties | Commonwealth v. Adams. |
| Court | Kentucky Court of Appeals |
APPEAL FROM CRITTENDEN CIRCUIT COURT.
W. J. HENDRICK, ATTORNEY GENERAL, FOR APPELLANT.
W. J. CRUSE FOR APPELLEE.
CHIEF JUSTICE HOLT DELIVERED THE OPINION OF THE COURT.
The charge in the indictment, as returned by the grand jury, was forgery. In considering the defendant's demurrer to it the court expressed a doubt as to its sufficiency to support a conviction for that offense, but was of the opinion that the facts stated were sufficient to constitute the offense of obtaining goods under false pretenses. Thereupon, the defendant consented that the charge in the indictment might be changed from forgery to obtaining goods under false pretenses, and it was done by direction of the court. It is claimed that this was done without the defendant's consent, his attorney merely agreeing to it without consulting him. The order of court shows otherwise, however, and as this record stands it must be accepted as true. The prosecuting attorney objected to the change, and after it was made moved to refer the case to the grand jury, but this was refused.
The State, by this appeal, asks that the action of the court be reviewed. The sole question is whether the court had a right to make the change. The offenses of forgery and obtaining goods under false pretenses are distinct. Both existed at the common law, and if the court could make the change then it had the power to say that the accused, if he consented, could be tried upon a charge different from that found by the grand jury. Such a practice, were it lawful, would certainly not be a desirable one. The law creates courts and defines their powers. Consent can not authorize a judge to do what the law has not given him the power to do. The act of the court in this instance was not a mere irregular exercise of a power. If so, consent would have cured it; but it was an act beyond its power.
It is the sole province of the grand jury, under our law, to find an indictment. It, and not the court, must say upon what charge the party shall be arraigned. The grand jury had not accused the defendant of obtaining goods under false pretenses but with the crime of forgery, and the judge had no power to assume its duties and alter the charge as fixed by it. There is a total want of power to thus act. Such a power is unknown to the law, and the act not in conformity to the law of the land. If the judge could, with the consent of the defendant,...
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