McIntire v. Com.

• Decision Date: 16 April 1887
• Citation: 4 S.W. 1
• Parties: MCINTIRE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

4 S.W. 1

MCINTIRE v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 16, 1887

Appeal from circuit court, Edmonson county.

W. E Settle, for appellant.

LEWIS J.

1. Appellant, before the trial, moved the court to set aside the indictment under which he was convicted in this case, upon the ground that the grand jury found and returned it without having heard the evidence of those whose names are written thereon as witnesses; and, to sustain his motion, offered to prove by said persons that they were not in fact examined as witnesses in support of the particular indictment.

When an indictment, with the indorsement "a true bill" thereon, signed by the foreman, as required by section 119 Crim. Code, and the names of all the witnesses purporting to have been examined written thereon, as required by section 120, is presented by the foreman, in the presence of the grand jury, to the court, and filed with the clerk, as required by section 121, it must be taken and considered as found and returned in due form of law. And the court has no authority to inquire whether 12 jurors concurred in finding it as required by section 119; nor whether the evidence before the grand jury was such as is required by section 111, to authorize the finding.

It appears in this case that an indictment against appellant for the same offense had on a previous day of the term been duly returned into court, but was on motion of the commonwealth's attorney dismissed, and the one under which appellant was convicted was found upon a reference of the case to the grand jury. So, even if it be conceded, which we think was never intended, that the court can inquire whether witnesses have been examined before the grand jury in support of an indictment returned by it, no such omission existed in this case; for, having previously examined the witnesses in reference to the offense charged against appellant, there was no necessity or propriety in recalling and re-examining the same witnesses when the case was re-referred and the second indictment was found.

2. The offense charged against appellant is robbery, committed, in the language of the indictment, "by then and there putting him, Carroll, the person robbed, in fear of immediate injury to his person, by then and there tying him with a rope, and threatening to hang him," etc. The instruction given at the instance of the commonwealth to which appellant objects, authorizes the jury...