Request By:
Mr. M. Ronald Christopher
President
Kentucky Commonwealth Attorneys Association
P.O. Box 577
Murray, Kentucky 42071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an Attorney General's opinion on the following question:
"Since KRS 24A.110 gives the district court exclusive jurisdiction to make final disposition of misdemeanors, can a circuit court make final disposition of a misdemeanor that comes about after a defendant has been indicted for a felony, then the Commonwealth's Attorney determines that a felony can not be proved, but a misdemeanor can, and the Commonwealth's Attorney then moves to amend the charge and the court so orders?"
The district court's criminal jurisdiction if established in KRS 24A.110, which reads:
"(1) The district court shall have exclusive jurisdiction to make final disposition of all criminal matters, including violations of county, urban-county, or city ordinances or codes, except:
"(a) Offenses denominated by statute as felonies or capital offenses; and
"(b) Offenses punishable by death or imprisonment in the penitentiary.
"(2) The district court has exclusive jurisdiction to make a final disposition of any charge or 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.
"(3) The district court has, concurrent with circuit court, jurisdiction to examine any charge of a public offense denominated as a felony or capital offense or which may be punished by death or imprisonment in the penitentiary and to commit the defendant to jail or hold him to bail or other form of pretrial release.
"(4) The district court may, upon motion and for good cause shown, reduce a charge of a felony to a misdemeanor in accordance with the Rules of Criminal Procedure."
The circuit court has original jurisdiction of all justiciable causes not exclusively vested in some other court. KRS 23A.010(1).
The general and literal effect of the express language of KRS 24A.110(1) and (2) is to vest in the district court the exclusive jurisdiction of misdemeanors, since the exceptions do not include misdemeanors, except "where the charge is joined with an indictment for a felony. "
It is true that careful scrutiny must be given to an exception of a general statute. Hargett v. Kentucky State Fair Board, 309 Ky. 132, 216 S.W.2d 912 (1949) 917.
The role of an exception in a statute is described in Gatliff Coal Co. v. Cox (C.C.A. -6, 1944) 142 F.2d 876, 882:
"The office of an exception in a statute is well understood. It is intended to except something from the operative effect of a statute or to qualify or restrain the generality of the substantive enactment to which it is attached and it is not necessarily limited to the section of the statute immediately following or preceding."
Notwithstanding the literalism of KRS 24A.110, the appellate court has declared that the language of a statute must receive a practical construction. Nuetzel v. Will, 210 Ky. 453, 276 S.W. 137 (1925) 138. Purther, the courts will not give a strict literal construction to a statute where to do so would lead to an absurd or unreasonable conclusion. Kentucky Mountain Coal Company v. Witt, Ky., 358 S.W.2d 517 (1962) 518. The court has also ruled that a statute must be construed so as to make it equitable and just. City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746 (1955) 750.
If there is some impractical or unjust situation produced by an inflexible and literal application of KRS 24A.110(2), then the rigid literalism must give way to the practical reality of accepted jurisdictional principle, if such is the case.
Suppose the grand jury indicts John Doe for theft of property (felony) under KRS 514.050. Under that statute theft of property lost, etc., is a Class A misdemeanor unless the value of the property is $100 or more, in which case it is a Class D felony. As commonwealth attorney you move to amend the felony charge to the misdemeanor listed in KRS 514.050, since you discover that the proof will sustain a value of less than $100. The circuit judge so orders the felony charge to be reduced to a misdemeanor.
In such situation the misdemeanor charge was not formally joined with the felony charge in the indictment, since a lesser included offense is involved, and the indictment was for the felony because it was felt that there was evidence sustaining the felony charge as a matter of prosecutorial choice.
It is our opinion that the phrase "where the [misdemeanor] charge is joined with an indictment for a felony, " as it appears in KRS 24A.110(2), is broad enough to include the precise situation before us [the felony of theft and the lesser included offense, the misdemeanor, as determined by the value of the property]. The court cites the rule that literal language contained in some parts of a statute in apparent conflict with the general scheme should surrender to the general purpose and intent of the legislature as gathered from all parts of the statute. Department of Revenue v. Miller, 303 Ky. 822, 199 S.W.2d 622 (1947) 623.
There are other aspects of this matter, involving the usual exercise of the court's jurisdiction, which buttress our view. The courts have said in many cases that instruction must be given covering the whole law of the case as the whole law of the case is determinable from all the evidence. "When the prosecution adduces evidence warranting an inference of a finding of a lesser degree of the charged offense, the court should instruct on the lesser degree even though the defendant presents the defense of alibi. Conversely, it is only where the evidence justifies it that an offense included in the indictment should be submitted to the jury." Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969) 350. This simply means that if a circuit judge is to carry out his declared duty to instruct on a lesser included offense, which was potentially the case in your situation until the felony was amended to the lesser included offense, he must be free to instruct on the lesser included offense, even though the latter is a misdemeanor. We see no difference, from a jurisdictional standpoint, in the circuit court's authority to instruct on the subject lesser included offense (theft, misdemeanor) and his amending the felony to the misdemeanor offense and then trying the misdemeanor and instructing on the misdemeanor only. In legal theory and practice, the subject felony and lesser included offense, from a circuit court jurisdictional standpoint, should be treated as if the two offenses are in the same unified whole. Here the felony and the misdemanor are entertwined factually from the viewpoint of jurisdictional theory and practice.
There is an additional consideration that, we believe, compels our conclusion. It concerns jeopardy. The 5th Amendment of the Federal Constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. See also § 13, Kentucky Constitution. The Supreme Court of Kentucky, in Graham v. Com., Ky., 562 S.W.2d 625 (1978) 627, ruled that "jeopardy attaches when a defendant is placed on trial before the trier of the facts." (Emphasis added). The court noted that in a footnote to Bretz v. Crist, 546 F.2d 1336 (1976), the court remarked that a major purpose of the double jeopardy clause is the protection of the defendant's right to have his trial completed by a particular tribunal. The Sixth Circuit Court of Appeals, in United States v. Wilson, (U.S.C.A. -6, 1976) 534 F.2d 76, 78, wrote" . . . jeopardy had attached when the first jury was selected and sworn."
Applying the jeopardy principle to your question, the constitutional principle of prohibiting double jeopardy requires that since the defendant was placed on trial by the circuit judge for the felony charge, and even though the charge was later amended to the misdemeanor, the circuit judge must necessarily continue with and try the lesser included offense matter, the misdemeanor, to a conclusion.
There is a general rule that jurisdiction once acquired is not defeated by subsequent events. Big Sandy Realty Co. v. Stansifer Motor Co., Ky., 253 S.W.2d 601 (1952) 604. Here the circuit court assumed jurisdiction and jeopardy attached. The subsequent event of the amending of the felony charge did not alter the jurisdiction of circuit court. It is well established that where jurisdiction of the court once attaches, as was the case here, it extends over the whole case, so as to authorize the court to determine all questions necessary to a full adjudication of the controversy. Worthington v. Commonwealth, Ky., 304 S.W.2d 926 (1957) 927.
Actually, the amendment of the felony charge was not necessary. As we pointed out above, the circuit court must instruct on the whole law of the case, including an instruction on a lesser included offense, if the latter is justified under the evidence heard.
Finally as the court said in Commonwealth v. Keller, Ky., App., S.W.2d (rendered October 19, 1979, not yet published), "The plain meaning of KRS 24A.110(2), supra, bars concurrent jurisdiction." The court in Keller held that a prior appearance by the defendant before a district court does not create any obstacle to the circuit court's assumption of jurisdiction over misdemeanor charges after those charges have been joined with felony charges in an indictment.
In summary, it is our opinion that where a defendant, charged with the subject felony, is placed on trial before the circuit judge and jury, and the felony charge is amended to the misdemeanor by the circuit judge, the lesser included offense, the circuit court must proceed with the trial of the misdemeanor to judgment.