indictment instruction in Kentucky

1925Walker v. Commonwealth, 197 Ky. 266 ; Howard v. Commonwealth, 197 Ky. 297 ; Sams v. Commonwealth, 207 Ky. 135 .

1925Walker v. Commonwealth, 197 Ky. 266 ; Martin v. Commonwealth, 197 Ky. 270 ; Thompson v. Commonwealth, 202 Ky. 674 .

2015KRS 22A.020(4) allows the Commonwealth in criminal cases to appeal “an adverse decision or ruling of the circuit court.” Although this statute is not referenced in Commonwealth v. Bushart, 337 S.W.3d 666 (Ky. App. 2011), it was the avenue for appeal of the circuit court’s order in that case dismissing an indictment on immunity grounds.

1979As was stated by this court in Braswell v. Commonwealth, Ky., 339 S.W.2d 637 (1960), “ a variance between the indictment and the proof is not regarded as material unless it misleads the accused in making his defense . . . .” By a parity of reasoning, a variance between the language of the indictment and that of the instructions cannot be considered significant unless the accused was misled.

1973As to appellant’s second contention that the circuit court had no jurisdiction because appellant was under the age of 18 at the time the offense was committed and no valid transfer order had been entered transferring jurisdiction to the circuit court, he cites the cases of Lowry v. Commonwealth, Ky., 424 S.W.2d 841 (1968) and Koonce v. Commonwealth, Ky., 452 S.W.2d 822 (1970), and attempts to distinguish his case from these on the basis that proceedings were commenced in the juvenile court against him at a time when he was under 18 years of age.

1973As to appellant’s second contention that the circuit court had no jurisdiction because appellant was under the age of 18 at the time the offense was committed and no valid transfer order had been entered transferring jurisdiction to the circuit court, he cites the cases of Lowry v. Commonwealth, Ky., 424 S.W.2d 841 (1968) and Koonce v. Commonwealth, Ky., 452 S.W.2d 822 (1970), and attempts to distinguish his case from these on the basis that proceedings were commenced in the juvenile court against him at a time when he was under 18 years of age.

1973The law of this jurisdiction is that dismissal of charges or even an indictment does not bar a subsequent indictment, see Commonwealth v. Smith, Ky., 244 S.W.2d 724 .

1970We regarded that showing as sufficient to warrant an evidentiary hearing, but we adhered to the view expressed in Rayborn v. United States, 251 F.2d 950 (CCA 6th Cir.), that mere unsupported allegations of lack of counsel will not be permitted to contradict plain, unambiguous court records.

1949So much for. the background of the case specifically in point; to wit, Commonwealth v. Dickerson, 258 Ky. 446 , 80 S. W. 2d 540 therein the wording of the indictment with the exception of date and transposition of words was identical with the indictment in this case.

1949So much for. the background of the case specifically in point; to wit, Commonwealth v. Dickerson, 258 Ky. 446 , 80 S. W. 2d 540 therein the wording of the indictment with the exception of date and transposition of words was identical with the indictment in this case.

1947In Jones v. Commonwealth, 213 Ky. 356 , 281 S. W. 164, 166 , we said: ‘ ‘ The court instructed the jury on voluntary and involuntary manslaughter and accidental homicide.

1947In Jones v. Commonwealth, 213 Ky. 356 , 281 S. W. 164, 166 , we said: ‘ ‘ The court instructed the jury on voluntary and involuntary manslaughter and accidental homicide.

1942Fletcher v. Commonwealth, 250 Ky. 597 , 63 S. W. (2d) 780 .

1942Fletcher v. Commonwealth, 250 Ky. 597 , 63 S. W. (2d) 780 .

1939In the case of Sizemore v. Com., 140 Ky. 338 , 131 S. W. 37, 40 , which was tried upon an indictment for violation of the local option laws, and in which we held the evidence was insufficient to uphold conviction, we referred to the statute which made the possession of a government permit prima facie evidence of guilt and said: “Therefore, when there is a prosecution under this section, the commonwealth may prove that the accused had a government license, and if there is other evidence conducing to show a violation of the statute, the court may, in addition to instructing the jury in the usual

1939In the case of Sizemore v. Com., 140 Ky. 338 , 131 S. W. 37, 40 , which was tried upon an indictment for violation of the local option laws, and in which we held the evidence was insufficient to uphold conviction, we referred to the statute which made the possession of a government permit prima facie evidence of guilt and said: “Therefore, when there is a prosecution under this section, the commonwealth may prove that the accused had a government license, and if there is other evidence conducing to show a violation of the statute, the court may, in addition to instructing the jury in the usual

1939But we do find Commonwealth v. Smith, 140 Ky. 580 , 131 S. W. 391 , to the effect that an order dismissing an indictment is not a bar to another indictment.

1939But we do find Commonwealth v. Smith, 140 Ky. 580 , 131 S. W. 391 , to the effect that an order dismissing an indictment is not a bar to another indictment.

1935Pelfrey v. Commonwealth, 255 Ky. 442 , 74 S. W. (2d) 913 ; Mulligan v. Commonwealth, 84 Ky. 229 , 1 S. W. 417 , 8 Ky. Law Rep. 211 .

1935Pelfrey v. Commonwealth, 255 Ky. 442 , 74 S. W. (2d) 913 ; Mulligan v. Commonwealth, 84 Ky. 229 , 1 S. W. 417 , 8 Ky. Law Rep. 211 .

1935Pelfrey v. Commonwealth, 255 Ky. 442 , 74 S. W. (2d) 913 ; Mulligan v. Commonwealth, 84 Ky. 229 , 1 S. W. 417 , 8 Ky. Law Rep. 211 .

1935Pelfrey v. Commonwealth, 255 Ky. 442 , 74 S. W. (2d) 913 ; Mulligan v. Commonwealth, 84 Ky. 229 , 1 S. W. 417 , 8 Ky. Law Rep. 211 .

1933The indictment was drawn for the purpose of charging the offense denounced in section 1160, Kentucky Statutes, which reads as follows: “If any person, with an offensive weapon or instrument, shall unlawfully and maliciously assault, or in or by any forcible and violent manner, demand any money, goods or chattels, bond bill, deed or will, or other evidences of right, or other thing of value of or from any other person, with an intent to rob or commit a robbery upon such person, he shall be confined in the penitentiary not less than five nor more than twenty years.” Though the statute was differ

1933The indictment was drawn for the purpose of charging the offense denounced in section 1160, Kentucky Statutes, which reads as follows: “If any person, with an offensive weapon or instrument, shall unlawfully and maliciously assault, or in or by any forcible and violent manner, demand any money, goods or chattels, bond bill, deed or will, or other evidences of right, or other thing of value of or from any other person, with an intent to rob or commit a robbery upon such person, he shall be confined in the penitentiary not less than five nor more than twenty years.” Though the statute was differ

1930Robinson v. Com., 88 Ky. 386 , 11 S. W. 210 , 10 Ky. Law Rep. 972 ; Hardin v. Com., 202 Ky. 670 , 261 S. W. 21 ; Rice v. Com., 105 S. W. 123 , 31 Ky. Law Rep. 1354 .

1930Robinson v. Com., 88 Ky. 386 , 11 S. W. 210 , 10 Ky. Law Rep. 972 ; Hardin v. Com., 202 Ky. 670 , 261 S. W. 21 ; Rice v. Com., 105 S. W. 123 , 31 Ky. Law Rep. 1354 .

1930Robinson v. Com., 88 Ky. 386 , 11 S. W. 210 , 10 Ky. Law Rep. 972 ; Hardin v. Com., 202 Ky. 670 , 261 S. W. 21 ; Rice v. Com., 105 S. W. 123 , 31 Ky. Law Rep. 1354 .

1926In Sloan v. Commonwealth, 211 Ky. 318 , 277 S. W. 488 , Sloan was making the same contention about the quashing of an indictment because of error in the impanelling of the grand jury which returned it, as is appellant here.

1926In Sloan v. Commonwealth, 211 Ky. 318 , 277 S. W. 488 , Sloan was making the same contention about the quashing of an indictment because of error in the impanelling of the grand jury which returned it, as is appellant here.

1926In the cases of Scarf v. Commonwealth, 195 Ky. 830 ; Newton v. Commonwealth, 198 Ky. 709 , and others referred to' in those opinions, it was held that, “When the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final trial on the first prosecution will be a bar to the second one.” If after defendant’s trial under the indictment herein he was sub *96 sequently indicted for the unlawful detention denounced in section 1158, supra, based upon the same acts charged in this indictment, clearly the testimony would authorize his conviction under the

1925Walker v. Commonwealth, 197 Ky. 266 ; Martin v. Commonwealth, 197 Ky. 270 ; Thompson v. Commonwealth, 202 Ky. 674 .

1925Walker v. Commonwealth, 197 Ky. 266 ; Howard v. Commonwealth, 197 Ky. 297 ; Sams v. Commonwealth, 207 Ky. 135 .

1925Walker v. Commonwealth, 197 Ky. 266 ; Martin v. Commonwealth, 197 Ky. 270 ; Thompson v. Commonwealth, 202 Ky. 674 .

1925Walker v. Commonwealth, 197 Ky. 266 ; Howard v. Commonwealth, 197 Ky. 297 ; Sams v. Commonwealth, 207 Ky. 135 .

1924Meredith v. Commonwealth, 199 Ky. 544 ; Overstreet v. Commonwealth, 147 Ky. 471 ; Rutland v. Commonwealth, 160 Ky. 77 ; Collins v. Commonwealth, 195 Ky. 745 ; Forman v. Commonwealth, 195 Ky. 758 .

1924Meredith v. Commonwealth, 199 Ky. 544 ; Overstreet v. Commonwealth, 147 Ky. 471 ; Rutland v. Commonwealth, 160 Ky. 77 ; Collins v. Commonwealth, 195 Ky. 745 ; Forman v. Commonwealth, 195 Ky. 758 .

1924Meredith v. Commonwealth, 199 Ky. 544 ; Overstreet v. Commonwealth, 147 Ky. 471 ; Rutland v. Commonwealth, 160 Ky. 77 ; Collins v. Commonwealth, 195 Ky. 745 ; Forman v. Commonwealth, 195 Ky. 758 .

1924Meredith v. Commonwealth, 199 Ky. 544 ; Overstreet v. Commonwealth, 147 Ky. 471 ; Rutland v. Commonwealth, 160 Ky. 77 ; Collins v. Commonwealth, 195 Ky. 745 ; Forman v. Commonwealth, 195 Ky. 758 .

1924Meredith v. Commonwealth, 199 Ky. 544 ; Overstreet v. Commonwealth, 147 Ky. 471 ; Rutland v. Commonwealth, 160 Ky. 77 ; Collins v. Commonwealth, 195 Ky. 745 ; Forman v. Commonwealth, 195 Ky. 758 .

1917This section of the code has been construed by this court in the case of Hennessey v. Commonwealth, 88 Ky. 301 ; and McBride v. Commonwealth, 13 Bush. 337.