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Commonwealth v. Payne

January 25, 1952

COMMONWEALTH
v.
PAYNE



Moremen

MOREMEN, Justice. The Commonwealth, proceeding under section 337 of the Criminal Code of Practice, has appealed and asked to have the law certified.

On September 11, 1951, a Clark County grand jury returned into the Clark Circuit Court, upon a printed form, which was completed by typewriting, indictment, numbered 2416, which read:

'Commonwealth of Kentucky

against

Robert Payne

Madison Circuit Court Indictment for Storehouse Breaking

' The Grand Jury of Madison County, in the name and by the authority of the Commonwealth of Kentucky, accuse Robert Payne of the offense of Storehouse Breaking committed as follows: That said Robert Payne in the county aforesaid and before the finding of this indictment did unlawfully, wilfully and feloniously, with intent to steal therefrom, break the storehouse, known as Bunch's Market, at No. 1 South Maple Street, Winchester, Kentucky, a depository for goods, wares and merchandise against the peace and dignity of the Commonwealth of Kentucky.' (The words italicized above, were printed -- the remainder were typewritten.)

On September 17, 1951, defendant filed demurrer to the indictment and the court took time. On September 18, after a plea of not guilty by the defendant, a jury was duly impaneled and sworn to try the issue under the indictment. Thereupon the Commonwealth's Attorney began to read the indictment to the jury. Before he finished, he moved that the court set aside the swearing of the jury and refer the case to the grand jury for a second indictment. The motion was sustained over defendant's objection. The case was again referred to the grand jury and, on September 20, 1951, the grand jury of Clark County returned indictment No. 2422, again charging defendant with the offense of breaking into the storehouse known as Bunch's Market at No. 1 South Maple Street, Winchester, Ky. This indictment contained the proper caption. To the indictment the defendant entered a plea of former acquittal. The Commonwealth filed an answer to this plea. The defendant filed a response to the answer to which response the Commonwealth demurred, and the court overruled the demurrer, dismissed indictment No. 2422, and ordered the defendant to be released from custody.

The Commonwealth contends that the first indictment was defective because the grand jury (1) captioned it Madison Circuit Court, (2) commenced the first line of the body of the indictment with the phrase, 'The grand jury of Madison County,' and (3) later used the expression 'in the county aforesaid,' which referred to Madison County. It is suggested that since the Clark Circuit Court had no jurisdiction to try defendant for a crime committed in Madison County, the defendant was never in jeopardy.

Appellee contends that the first indictment No. 2416 was sufficient to sustain a conviction and, therefor, when the jury was sworn under the indictment, the defendant was under legal jeopardy and the jury could not constitutionally, except for good cause, be discharged.

The decision in this case demands determination of (1) whether the first indictment was sufficient and (2) whether the proceedings in this case under the first indictment were sufficient to place him in jeopardy.

We have held that neither the caption nor the commencement of an indictment is part of an indictment. Banks v. Commonwealth, 277 Ky. 647, 126 S.W.2d 1122; Mitchell v. Commonwealth, 106 Ky. 602, 51 S.W. 17. In the latter case, where the indictment was captioned 'Liquor Circuit Court' instead of Laurel Circuit Court, it was written: 'Anciently, at common law, it was the custom to write the name of the county on the margin, either with or without the addition of the word 'scilicet.' The omission of this, however, was not fatal, when the caption or the body of the indictment showed the county. Neither the caption nor the commencement are, strictly speaking, parts of the indictment, though parts of the record (Bish. New Cr.Proc. ยง 663 et seq.); and while, in courts of limited or inferior jurisdiction, it is necessary that the facts necessary to give such court jurisdiction should appear in the caption or commencement, the Laurel Circuit Court being a court of superior jurisdiction, it is not essential for the jurisdictional facts to appear in the caption.'

In Banks v. Commonwealth, 277 Ky. 647, 126 S.W.2d 1122, 1123, where the indictment was headed, 'Perry Circuit Court,' when in fact the accused was tried and convicted in Knott Circuit Court of a crime committed in Knott County, it was said: 'In the instant case the body of the indictment made it clear that the offense was charged to have been committed in Knott County. This was amply sufficient to advise the accused that he was indicted and to be tried in the Knott circuit court for an offense committed in Knott County.'

It is true that the indictment under consideration contained the printed words 'county aforesaid,' which referred to the antecedent 'Madison County' in the commencement of the indictment, nevertheless, the specific and particular description of the place where the offense was alleged to have been committed was sufficient to advise accused that he was indicted and was to be tried in Clark County for an offense committed in Clark ...


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