Request By:
Hon. Louis A. Ball
Commonwealth's Attorney
17th Judicial District
Court House
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
This is in reply to your letter of February 22, 1978, in which you requested an opinion of this office relative to KRS 24A.110(2), a statute pertaining to the criminal jurisdiction of the new district court system. Specifically you inquire whether,
1) The district court may refer misdemeanor offenses to the grand jury,
2) The grand jury may return a misdemeanor indictment when the charge is not joined with an indictment for a felony, and
3) Misdemeanor violations that are apparent to a grand jury should be referred to the district court for appropriate jurisdiction.
To adequately reply to these inquiries requires a review of the law relating to what constitutes an indictable offense in this Commonwealth.
In Lakes v. Goodloe, Ky., 242 S.W. 632 (1922), the Court of Appeals states,
It has been consistently held that the term 'indictable offense' , as used in this section of the constitution (Section 12), had reference to common-law offenses or to statutory offenses, the punishments for which are 'infamous. '
In the same opinion that Court defined the phrase "infamous punishment" as,
. . . death or imprisonment in the penitentiary of the state, following a conviction of a felony, and confinement in a county jail upon conviction for a misdemeanor, although attended with hard labor, has never been regarded as an infamous punishment.
The Court in King v. City of Pikeville, Ky., 299 S.W. 1082 (1927), subsequently expanded its definition of "infamous" to include an offense for which the infliction of punishment resulted in disenfranchisement.
Section 12 of the Constitution of Kentucky provides, in part,
No person for an indictable offense shall be proceeded against criminally by information, . . .
RCr 6.02, in conformity with this constitutional mandate provides,
All offenses, except those required by law to be prosecuted by indictment, may be prosecuted by information.
It is therefore concluded that, constitutionally, only infamous crimes or felonies must be charged by indictment. It is axiomatic that misdemeanors are not, generally, infamous offenses. Eisner v. Commonwealth, Ky., 375 S.W.2d 825 (1974). An indictment is therefore unnecessary to properly charge a misdemeanor offense unless one convicted thereof is subject to infamous punishment. See OAG 63-805 and OAG 76-127, attached hereto, in support of this conclusion. Punishment is not considered infamous under the Kentucky Constitution if it consists only of a fine and imprisonment in a county jail. Commonwealth v. Hope, Ky., 492 S.W.2d 207 (1973).
Therefore, in answer to your first question, while a district court theoretically may refer a misdemeanor offense to the grand jury for indictment, such a procedure is usually unnecessary and impractical. An indictment is not required for the bringing of a proper charge for a misdemeanor.
KRS 24A.110(2) provides,
The district court has exclusive jurisdiction to make a final disposition of any charge of a public offense denominated as a misdemeanor or violation except where the charge is joined with an indictment for a felony, and all violations of county, urban-county, or city ordinances and, prior to trial, to commit the defendant to jail or hold him to bail or other form of pretrial release.
This statute clearly supports the district court's jurisdiction to dispose of any non-felony criminal offense. The charge may be brought by information or complaint. There is no constitutional requirement that it be brought by indictment.
In response to your second question, this is not to say that a grand jury may not return a misdemeanor indictment, especially in a case already before it in which the Commonwealth is seeking a felony indictment. The language of KRS 24A.110(2), appears to infer such permissibility. However it would be impractical to affirmatively seek a misdemeanor indictment, where it is not required, and is not a usual method of procedure. This statute itself merely precludes district court jursidiction where a misdemeanor charge is joined with a felony indictment arising out of the same fact situation.
Added support for this conclusion is found in RCr 5.02. It provides,
The Court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge. (Emphasis added).
The language of this rule of criminal procedure infers that the grand jury possesses the authority to return a misdemeanor indictment. While the return of such an indictment is not a normal function of the grand jury in that this body is primarily concerned with felony matters, a defendant charged under a misdemeanor indictment in district court cannot be heard to complain since the proper return of an indictment fulfills the highest constitutional standards for the charging of an offense.
This same rule resolves your final inquiry. Any misdemeanor violations which became apparent to the grand jury should be referred to the district court for appropriate adjudication, as it is charged "to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed. . . ."
Should you have further questions in this regard please do not hesitate to contact us.