Request By:
Mr. Jack R. Kibbey
Commonwealth Attorney
20th Judicial District
P.O. Box 36
Vanceburg, Kentucky 41179
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a prosecutorial problem arising out of KRS 61.170. That statute provides that certain county constitutional officers enumerated therein may be indicted for misfeasance or malfeasance in office, or wilful neglect in the discharge of official duties, etc. In the past, the grand jury indicted a jailer on such charges, and your circuit court transferred the indictment to the district court, since it involved a misdemeanor.
Your question is whether the circuit court or district court has jurisdiction of a case involving an indictment of one of the constitutional officers mentioned in KRS 61.170.
The statute, KRS 61.170, is an implementation of Section 227 of the Kentucky Constitution, which constitutional section provides that certain constitutional officers enumerated therein shall be subject to indictment or prosecution for misfeasance or malfeasance in office, or wilful neglect in the discharge of official duties, in such mode as may be prescribed by law, and upon conviction his office shall become vacant. KRS 61.170 explicitly provides for an indictment for such offenses, and, upon conviction, for a fine of $100 to $1000; and the judgment of conviction shall declare the office held by such official vacant. See
Robbins v. Commonwealth, 232 Ky. 115, 22 S.W.2d 440 (1929).
The effect of the literal language of KRS 24A.110 is such that it generally vests the exclusive jurisdiction of misdemeanor cases in the district court. The only exception to the rule is mentioned in subsection (2) of that statute. It reads: "except where the charge is joined with an indictment for a felony. "
Of course, an indictment can only be made by a circuit court grand jury. See KRS 29A.060, 29A.210, and
Turk v. Martin, 232 Ky. 479, 23 S.W.2d 937 (1930). But there is no statute requiring the circuit court to try a case where the grand jury has returned an indictment for a misdemeanor. See KRS 24A.110, vesting exclusive jurisdiction of misdemeanor cases in the district court, except as above noted. Further, KRS 23A.010(1) vests in circuit court original jurisdiction of all justiciable causes not exclusively vested in some other court.
Thus where the grand jury indicts for a felony, the circuit court will have to try it. Where the grand jury indicts for a misdemeanor, the effect of the statute vesting exclusive jurisdiction of misdemeanors in the district court is such that it directs the circuit court to transfer the charge, i.e., the indictment for a misdemeanor, to the district court of the affected county for trial or other proper disposition.
Under the principle prohibiting double jeopardy, as covered in the 5th Amendment of the Federal Constitution and Section 13 of the Kentucky Constitution, it is important that the circuit judge, on being presented with the misdemeanor indictment, order the transfer of the charge to the district court of that county for trial or further action, as the district court may deem appropriate.
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, once begun.
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." (Emphasis added).
In the situation you mention, when the grand jury returns an indictment for the misdemeanor denounced in KRS 61.170, the circuit judge should, and prior to selecting and swearing in a jury, order the case transferred to the district court for further proceedings. This would satisfy the policy of exclusive jurisdiction of misdemeanors and the double jeopardy clause of the constitutions.
It is true that as a general rule the jurisdiction of a grand jury is coextensive with the criminal jurisdiction of the court in which it is impaneled and for which it is to make inquiry. See 42 C.J.S., Indictments and Information, Section 17, p. 855; and 38 C.J.S., Grand Juries, Sec. 34b, p. 1029. See also
Nicholas v. Thomas, Ky., 382 S.W.2d 871 (1964) 872, in which the court wrote that an indictment properly returned, as required by the constitution [Sec. 248], charges the defendant with a crime over which the circuit court has jurisdiction.
However, the general rule that the jurisdiction of a grand jury is coextensive with the criminal jurisdiction of the court of which it is a part is subject to the exception presented by this situation. Here KRS 61.170 requires an indictment by a circuit court grand jury in order to charge that offense; but since KRS 24A.110 vests exclusive jurisdiction of misdemeanor cases, generally, in the district court, the circuit court in which such an indictment is returned has necessarily, because of the jurisdictional statute, the authority and duty to refer the indictment for trial or other appropriate disposition to the district court of that county.