Dunn v. Com.

• Decision Date: 08 February 1935
• Citation: 79 S.W.2d 12,257 Ky. 702
• Parties: DUNN et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

79 S.W.2d 12

257 Ky. 702

DUNN et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

February 8, 1935

Appeal from Circuit Court, Breathitt County.

Bill Dunn and others were convicted of voluntary manslaughter, and they appeal.

Reversed with directions.

Williams & Allen and R. A. Dunn, all of Jackson, for appellants.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

PERRY Justice.

The appellants, Bill Dunn, Kelly Dunn, and Ben King, were jointly indicted in the Breathitt circuit court for the willful murder of Beckham Helton, and upon trial were convicted of voluntary manslaughter.

By the record it appears that on the back of this indictment is the following indorsement:

"Commonwealth of Kentucky v. Bill Dunn, Kelly Dunn and Ben King.

"Indictment for Murder.

"R. L. Hadden, Foreman.

"Presented by the foreman in the presence of the Grand Jury--to the court and filed in open Court this the 16 day of July, 1934.

"G. L. Allen,

Clerk Breathitt Circuit Court."

It nowhere appears in the record, by this indorsement or otherwise, that the indictment thus presented in court by the grand jury was by its foreman indorsed and signed "a true bill," as required by section 119 of the Criminal Code of Practice which provides that: "The concurrence of (twelve) grand jurors is required to find an indictment; when so found, it must be indorsed 'a true bill,' and the indorsement signed by the foreman."

For such defect in the indictment, it is urged that defendant's demurrer thereto should have been sustained, and the indictment quashed. In this we concur.

In the case of Oliver v. Commonwealth, 95 Ky. 372, 25 S.W 600, 15 Ky. Law Rep. 662, it is held that this section is mandatory in requiring that the indictment must be indorsed "a true bill" and signed by the foreman. While in Patterson v. Commonwealth, 86 Ky. 313, 5 S.W. 765, 9 Ky. Law Rep. 481, and Pickerel v. Commonwealth, 30 S.W. 617, 17 Ky. Law Rep. 120, it is held that although defendant's right to object to the indictment, because defective in this respect, be waived by failing to demur or to move to set it aside upon such ground, yet, where a demurrer is filed challenging its validity as defective in failing to comply with this mandatory provision of the quoted section, the demurrer must be sustained and the indictment dismissed. To such effect, see Com. v. Louisville & N. R. Co., 32 S.W. 136, 17 Ky. Law Rep. 562, and also Cochran v. Commonwealth, 210 Ky. 332, 275 S.W. 810. In the latter case we said: "This provision [section 119, Criminal Code] is mandatory, and the trial court erred in overruling the demurrer to the indictment. ***" Commonwealth v. L. & N. R. Co., 32 S.W. 136, 17 Ky. Law Rep. 562; Lewis v. Commonwealth, 48 S.W. 977, 20 Ky. Law Rep. 1104; ...