Request By:
Mr. Ray Corns
Commonwealth Attorney
48th Judicial Circuit
104 Bridge Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is whether or not an indictment must contain the formal conclusionary phrase "against the peace and dignity of the Commonwealth"? You say that the fellow attorneys and officials in AOC believe it is no longer necessary. Undoubtedly that view is based primarily upon the fact that § 123 was repealed by a vote of the people in 1975. Since the new sections in the judicial part of the Kentucky Constitution contain nothing comparable to the special phrase provision of the old § 123, it is pertinent and necessary, we think, to review the basic history of the old section and consider what function, if any, it served in criminal law. As you point out, RCr 6.10(4) provides that 'The indictment or information shall contain a formal conclusion required by Section 123 of the Kentucky Constitution." That provision was in existence prior to the amendment of the constitution, but it has apparently been inadvertently carried forward to the present.
Section 123 of the Kentucky Constitution, prior to its repeal by the 1974 Acts (Ch. 84, §§ 1-3) and vote of the people in 1975 [the repeal becoming effective January 1, 1976], read:
"The style of process shall be, 'The Commonwealth of Kentucky.' All prosecutions shall be carried on in the name and by the authority of the 'Commonwealth of Kentucky,' and conclude against the peace and dignity of the same."
Under the literal wording of § 123 of the Constitution, the indictment was required, after the accusatory part of the instrument, to end up stating "against the peace and dignity of the Commonwealth." The old Court of Appeals in several cases established the doctrine that if the statement appears at the end of the indictment, it was compliance with the constitution. Ingram v. Commonwealth, Ky., 427 S.W.2d 815 (1968) 818. However, it is interesting to note that some three years prior to the vote of the people on the constitutional (judicial) amendment, Justice Neikirk, for the Court, in Scillion v. Commonwealth, Ky., 487 S.W.2d 288 (1972) 290, referred, in reiterating the above doctrine, to the "magic words" of § 123 of the Kentucky Constitution. The phrase "magic words" suggests that the court might have been on the precipice of holding that the phrase was fundamentally formal but meaningless in terms of the pragmatism of criminal justice. But that is somewhat academic in view of the repeal of § 123 without the enactment of any comparable provision.
Nevertheless, we think it pertinent to consider whether the function it subserved merits a continuation of its use, even absent an explicit constitutional provision.
The indictment is an accusation (charging a criminal offense) made in behalf of the people. It must charge the defendant with a crime over which the circuit court has jurisdiction. Nicholas v. Thomas, Ky., 382 S.W.2d 871 (1964) 872. RCr 6.10(2) provides that the indictment shall be sufficient if it contains a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged. It has been held that where the indictment meets the above requirement of RCr 6.10(2), it is sufficient even though no specific statutory reference is made. Murray v. Commonwealth, Ky., 473 S.W.2d 150 (1971) 152. Under the analysis of what an indictment is, the idea of stating that such alleged criminal offense was "against the peace and dignity of the Commonwealth" is really meaningless, unnecessary and contributes nothing to fundamental criminal process. It is wholly redundant in terms of stating a criminal offense as enacted into the Criminal Code by the General Assembly. The stating of the offense is the efficacious and critical element of the indictment. In enacting the criminal statutes the idea of interfering with the peace and dignity of the Commonwealth, within the frame of its social and political implication, is implicit in all of the criminal statutes. As the court said years ago, the law does not require the doing of a vain or useless thing. Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821. Thus the present RCr 6.10(4) is meaningless, since it refers to a section in the constitution which no longer exists. The only reason for the rule was to merely implement or recognize § 123 of the constitution. The demise of § 123 no longer requires such rule.
The critical function of an indictment is to state the offense with such clarity and intelligibility as to fairly apprise the defendant of the crime intended to be alleged, so as to enable him to prepare his defense. Eisner v. United States (U.S.C.A. -6, 1965) 351 F.2d 55, 57. This practical wisdom is reflected in the early case of Commonwealth v. Kennedy, 15 B. Mon. 531, 54 Ky. 531 (1855), holding that under an old criminal code provision an indictment is sufficient if it shows intelligibly the offense intended to be charged; and that it shall not be deemed insufficient by reason of any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits. In the early case of Frisbie v. United States, 157 U.S. 160, 15 S. Ct. 586, 39 L. Ed. 657 (1894), the Supreme Court of the United States, in treating the objection that the indictment does not conclude that the offense charged was "contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States," held that it is sufficient to state that such allegation, which is one of a mere conclusion of law, is not of the substance of the charge. The court went on to hold that the omission of the phrase is a matter of form, which did not tend to the prejudice of the defendant, and is to be disregarded. Under RCr 6.12 the failure to include the phrase, "against the peace and dignity, etc.", cannot render the indictment insufficient since its omission obviously would not tend to prejudice the substantial rights of the defendant upon the merits.
In summary, we are of the opinion that, in view of the repeal of § 123 of the Constitution and other considerations of practical logic, the present RCr 6.10(4) requiring the conclusionary phrase in the indictment is meaningless and of no efficacy. Further, the failure to include the phrase would in no way tend to prejudice the substantial rights of the defendant upon the merits.