Short, Wilbur D.

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Kentucky Law JournalVolume 47 | Issue 4 Article 71959Indictment and Information--KentuckyConstitutional Limits and Proposed Changes in theUse of the InformationWilbur D. ShortUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Constitutional Law Commons, and the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationShort, Wilbur D. (1959) "Indictment and Information--Kentucky Constitutional Limits and Proposed Changes in the Use of theInformation," Kentucky Law Journal: Vol. 47 : Iss. 4 , Article 7.Available at: https://uknowledge.uky.edu/klj/vol47/iss4/7The second method also appears to be more logically reasoned inthat it is based upon sound agency principles, whereas the firstmethod is based upon fiction.Wilbur D. ShortINDICTMENT AND INFORMATION-KENTUCKY CONSTITUTIONAL LIMITS AND PROPOSEDCHANGES IN THE USE OF THE INFORMATIONAt the present time Kentucky, by statute, allows the use of theinformation in circuit courts for the prosecution of certain misde-meanors, and for all offenses within the jurisdiction of courts inferiorto the circuit court.1 The purpose of this paper is to ascertain theextent to which the information may be used in Kentucky and toexamine its possible future uses.Analysis of ConstitutionThe Kentucky Constitution § 12 provides:No person, for an indictable offense, shall be proceeded againstcriminally by information, except in cases arising in the land or navalforces, or in the militia, when in actual service, in time of war orpublic danger, or by leave of court for oppression or misdemeanorin office.Since the exceptions within this section are extremely limited,no particular importance is attached to them in the development ofthis paper.This provision, on its face, would appear to prohibit the use ofthe information in all cases in which the indictment may be used,and since the present use of the information2 overlaps the permitteduses of the indictment, it would appear that the present use of theinformation is partly unconstitutional. However, such a literal inter-pretation has not been adopted by the Kentucky Court of Appeals.The court has wisely limited the application of the constitutionalprovision which otherwise would have tied the hands of a prosecut-1 Ky. Rev. Stat. § 455.080 (1959) provides in part:In circuit court, persons charged with misdemeanors for which thehighest penalty that may be imposed is a fine of one hundred dollarsand imprisonment for fifty days may be prosecuted . . .by informationfiled by the Commonwealths attorney or county attorney in the cir-cuit court. In courts inferior to circuit courts, any offense within thejurisdiction of the court may be prosecuted on [an] . ..informationfiled before the judge or justice.2Ky. Rev. Stat. § 455.080 (1959).a3y Grim. Code § 9 (1959). The indictment or information may be usedin the circuit courts for offenses having punishments of not more than one hundreddollars and imprisonment for fifty days.1959] NOTESKENTUCKY LAW JouRNALing attorney in the inferior courts in situations where a complainingwitness refused to swear out a warrant.In Lakes v. Goodloe4 the court said that it had consistently heldthat the term "indictable offense," as used in section 12 of the Ken-tucky Constitution, has reference to common-law offenses or to stat-utory offenses, the punishments for which are "infamous"; and that"infamous" punishment in this jurisdiction is death or imprisonmentin the penitentiary of the state following a conviction of a felony.There are no Kentucky cases which conflict with the views expressedin the Lakes case.Having found that section 12 applies to common-law and statutoryfelonies, the constitutional limits on the use of the information maybe ascertained by reference to a statutory definition of offenses.Kentucky defines public offenses as follows:Offenses are either felonies or misdemeanors. Offenses punish-able with death or confinement in the penitentiary are felonies. Allother offenses, whether at common law or made so by statute, aremisdemeanors. 5Thus, it may be said that all misdemeanors in Kentucky may con-stitutionally be prosecuted by information, since section 12 of theKentucky Constitution only prohibits its use in cases involvingfelonies. 6 The present limits imposed on the use of the informationin prosecuting misdemeanors in Kentucky are those imposed by statuteupon the circuit court7Expanding The Use of The InformationProsecution by information is more efficient than prosecution byindictment. It is cheaper, it saves time, and it properly centersresponsibility upon the prosecutor for actions which are largelyunder his control.8 Even where the indictment is used, the GrandJury may serve merely to rubber stamp the opinion of the prosecut-ing attorney.94 195 Ky. 240.252, 242 S.W. 682, 639 (1922).5 Ky. Rev. Stat. § 431.060 (1959); See also Ky. Crim. Code §§ 5-7 (1959).6 Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632 (1922). The holding in theLakes case on this point finds support in the following cases: Baldwin v. Common-wealth, 314 Ky. 369, 235 S.W. 2d 771 (1951); Louisville & N. R. R. v. Common-wealth, 175 Ky. 372, 194 S.W. 315 (1917); Ford v. Moss, Judge, 124 Ky. 288,98 S.W. 1015 (1907); Louisville & N. R. R. v. Commonwealth, 112 Ky. 635, 66S.W. 505 (1902); Lowry v. Commonwealth, 18 Ky. L. Rep. 481, 86 S.W. 1117(1896).7 Ky. Rev. Stat. § 455.080 (1959); See Singleton v. Commonwealth, 306 Ky.454, 208 S.W. 2d 325 (1948) and Commonwealth v. Lay, 202 Ky. 683, 261S.W. 7 (1924).8 Miller, 'Informations or Indictments in Felony Cases," 8 Minn. L. Rev.379 (1924) i Moley, "The Initiation of Criminal Prosecutions by Indictment orInformation,' 29 Mich. L. Rev. 403 (1931); but Cf. Dession, "From Indictmentto Information-Implications of the Shift," 42 Yale L; J. 163 (1932).9 Potts, "Waiver of Indictment in Felony Cases, 3 Sw. L. J. 437, 447 (1949).[Vol. 47,In days when there was no organized police force and no prose-cuting attorney, the grand jury rendered an invaluable service ininitiating prosecutions after a crime was committed. Today, theseconditions do not exist. By virtue of an organized police force,prosecuting attorney and greater communication facilities, most ofthe cases considered by the grand jury are ones in which arrestshave already been made, preliminary hearings have been held, andthe prisoners are being held in jail or have been released on bail.10Generally a prosecuting attorney of any training and judgmentwould not "be so apt to respond to public hysteria or to privateimportunity as would the grand jury."" Persons related to, orclosely connected with the prosecutor or the accused may be on thegrand jury as may persons who have a strong personal opinion orpecuniary interest in the matters to be dealt with. Such personsshould not be on grand juries, but frequently are.Having justified expanding the use of the information, the prob-lem arises as to what extent it may be used in felony cases. Whilesection 12 of the Kentucky Constitution gives a defendant the rightto be prosecuted by indictment in a felony case, there exists a pos-sibility that he might waive this right and be tried on an informa-tion for a felony.In the federal courts, Rule 7(a) and (b )12 permits prosecutionof non-capital felonies by information, if the defendant, "after hehas been advised of the nature of the charge and of his rights, waivesin open court prosecution by indictment."13 This rule has been heldto be constitutional, 14 even though the Fifth Amendment to theConstitution of the United States provides that "No person shall beheld to answer to a capital, or otherwise infamous crime, unless ona presentment or indictment of a grand jury."15A majority of states now permit prosecution of indictable of-fenses by information or permit waiver if felonies are required tobe prosecuted by indictment.16 The arguments presented above insupport of the information are equally applicable to permitting waiverof indictments.17 It may further be said that to refuse waiver maywork an enormous hardship on an indigent person who is unable to3oMiller "Informations or Indictments in Felony Cases," 8 Minn. L. Rev.379, 389 (1924).11 Id. at 401.12 Fed. R. Crim. P. (1946).13 Fed. R. Crim. P. 7 (b) (1946).14 Barkman v. Sandford, 162 F. 2d 592 (5th Cir. 1947).15 For discussion of other constitutional rights which may be waived infederal courts see United States v. Gill, 55 F. 2d 899 (D. N. M. 1931); for thedominant rationale in such cases see Patton v. United States, 281 U. S. 276 (1930).1 6 Note, 1 Texas Law and Leg. 22, n. 25 (1947).17 Note, 1 Texas Law and Leg. 22 (1947).190-9] NOTESKENTucKY LAw JommALmake bail and must be kept in jail until the grand jury convenes,which may be as seldom as twice a year in some areas of the country.However, some states refuse to permit waiver of indictment.In People ex rel. Battista v. Christian'8 the New York Court of Appealsheld a statute permitting waiver of indictment void as being con-trary to a state constitutional provision requiring that no personshould be held to answer for an infamous crime unless on present-ment or indictment of a grand jury. 9 In holding that the right to anindictment could not be waived, the court said:[T]he rule can be deduced that waiver is not permitted where aquestion of jurisdiction or fundamental rights is involved and publicinjury would result. A privilege, merely personal, may be waived; apublic fundamental right, the exercise of which is requisite to juris-diction to try, condemn, and punish, is binding upon the individual,and cannot be disregarded by him. The public policy of the stateas expressed in the Constitution takes precedence over his personalwish or convenience... 20Kentucky apparently has chosen to follow New York in this areaof the law, for in Singleton v. Commonwealth2' the Kentucky Courtof Appeals seemingly reached a similar conclusion in an opinionwhich relied on the Christian case for support. Singleton merely in-volved waiver in a misdemeanor case in the circuit court for anoffense that statutorily could only be prosecuted by indictment.22However, it is believed that this opinion would be followed all themore in a case involving waiver of an indictment in a felony casewhere prosecution was sought on an information.Even though the information might not constitutionally be ex-tended to cover prosecution of felonies, its use may be expanded tocover more or all misdemeanors prosecuted in the circuit courtsunder the present Kentucky Constitution. It should be noted thatthe present limits on the use of the information in circuit courts arethe same as those enacted in 189828 when the use of the informationwas first permitted in Kentucky. In 1893 the concurrent jurisdic-tional limits of circuit and inferior courts were the same as the limitsimposed on the information. 24 It apparently was intended thatuse of the information be allowed in circuit courts only to the extentit was permitted in the inferior courts. Since that time, the con-18249 N.Y. 314, 164 N.E. 111 (1928); Comment, 24 Ill. L. Rev. 319 (1929).19 N. Y. Const. art. 1, § 6.20People ex rel. Battista v. Christian, 249 N.Y. 314, 315, 164 N.E. 111, 112(1928).21 306 Ky. 454, 208 S.W. 2d 325 (1948).22 Commonwealth v. Lay, 202 Ky. 683, 261 S.W. 7 (1924).23Ky. Acts (1893), ch. 182 § 15.24 Ky. Acts (1893), ch. 221 § 67 (Justices' Courts); Ky. Const. § 143 (PoliceCourts); Ky. Crim. Code § 13(6) (1959) (County Courts).[Vol. 47,1959] NoTEs 555current jurisdictional limits of inferior courts have been extendedto "five hundred dollars or twelve months."2 5 This alone might justifyan extension in the use of the information to this extent, at thecircuit court level.In view of the reasons discussed above in favor of the informa-tion, it is felt that its use should be extended to cover all prosecu-tions for misdemeanors in circuit courts. Such an extension wouldrelieve the grand jury of hearing cases involving misdemeanors wherethe defendant desires to plead guilty or where the prosecutor hassufficient evidence to act without the approval of the grand jury.To this extent the grand jury would have more time to investigatepublic officials and the management of public institutions, which areperhaps its most important functions today.26Wilbur D. Short2GKy. Rev. Stat. § 25.010 (1959); Ky. Rev. Stat. § 26.010 (1959).26 The powers of the grand jury to investigate are set forth in Ky. Grim.Code § 102 (1959).

Indictment and Information--Kentucky Constitutional Limits and Proposed Changes in the Use of the Information

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Indictment and Information--Kentucky Constitutional Limits and Proposed Changes in the Use of the Information

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