This is аn original proceeding in which a Commonwealth’s Attorney, acting with the acquiescence of the Attorney-General, seeks to prohibit the respondent, as special judge in a murder case, from entering an order reducing the charge to second-degree manslaughter and sentencing the defendant to a term of five (5) years in the penitentiary, KRS 507.040, 532.020(l)(b), over objection by the Commonwealth'.
The first question to be considered in this as in any other prohibition or mandamus case is whether the applicant has an adequate remedy by appеal. If so, and if the respondent is acting within the scope of his jurisdiction, then of course the respondent is entitled to be let alone, to exercise his power as he sees fit until he is through with the case, because if what he does is wrong it can be undone in due course and in thе same manner applicable to any other case. Anyone with a rudimentary understanding of the administration of justice understands of cоurse that if every action taken or about to be taken by a trial judge were made subject to day-to-day supervision by an appеllate court the result would be chaos. We take the time here to recite this elementary principle not because we suspect that any of the parties to the case may not be aware of it, but because the exhibits before us suggest that the local press in Prestonsburg, Kentucky, either is in the dark or, if it is not so benighted, prefers noise first and facts later.
It has been the petitioner’s assumption herе that an appeal by the Commonwealth would be limited to a certification of the law, for which reason it would not be an adequаte remedy. Since the law on the subject of double jeopardy has not been entirely clear, and we have some new law resрecting the Commonwealth’s right of appeal, we are not disposed to criticize that assumption, but we do think it is not well taken.
Considering a 1970 amendment of the Criminal Appeals Act, 18 U.S.C. § 3731, the United States Supreme Court in
Serf ass v. United States,
It was observed also (
It has been well settled in this state that jeopardy does not attach until a jury has been sworn.
Baker v. Com.,
280 Ky.
*455
165,
So also has KRS 21.140(3) been construed as intending to allow the Commonwealth an appeal for purposes of a reversal when it will not subject the accused to double jeopardy.
Commonwealth v. Devine,
Ky.,
“(4) When an appeal is taken pursuant to subsection (3), the Court of Appeals, if the record so warrants, may reverse the decision of the circuit court and order a new trial in any case in which a new trial would not constitute dоuble jeopardy or otherwise violate any constitutional rights of the defendant.”
Ordinarily a guilty plea is a waiver by the defendant of his right to а trial. The point is relevant here because if an irrevocable waiver has been effected that too might very well placе him in jeopardy. The record discloses that the trial court did interrogate the defendant to ascertain if he fully understood the significanсe of a guilty plea and if it was voluntary, after which the plea was orally accepted. RCr 8.10 provides that at any time before judgmеnt “the court may permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” This provision would appear to connote, though we have not so held, that a voluntary plea of guilty, once made, cannot thereafter be withdrawn as a matter of right. On the other hаnd, it could scarcely be gainsaid that the plea in this instance was made with the understanding that the charge could and would be reduced to manslaughter, so that if it be held that the charge cannot be so reduced it must follow that the plea was not “voluntary” in a constitutional sense. And that is exactly what we do hold. Hence there was no waiver of the defendant’s right to a trial by jury, he was not in jeopardy, and the proposed order of the trial court under KRS 21.140(3) is reversible on appeal.
There is yet another reason for holding that the plea оf guilty was not a waiver. It is elementary that a court of record speaks only through its records. An order is not an order until it is signed. Until then the judge cаn change his mind and not enter it. The order of the trial court that is under attack here has not been signed, hence the guilty pléa has not beеn officially accepted. In this status the defendant is as free to withdraw it as the trial court is to accept or reject it.
The basis fоr our opinion that without consent of the Commonwealth a trial court may not before a trial amend or reduce to a lower degree the charge brought against a defendant is that it is not the prerogative of a court to choose what the accusation will be. Only after the evidence is in does the court have a comparable function, which comes in the form of determining what the instructiоns to the jury will be, and that determination must be made according to the sufficiency of the evidence under the law.
It follows, of course, that the Commonwealth has an adequate remedy in this case and that prohibition is not strictly necessary. Nonetheless, as in
Wiglesworth v. Wright,
Ky.,
The temporary order of prohibition entered on January 14, 1976, is now made permanent, and the respondent is prohibit *456 ed from entering without consent of the Commonwealth any pretrial order having the effect of reducing the charge stated in the indictment against the defendant оr defendants in the case of Commonwealth of Kentucky v. Eddie Jones and Agnel Jones, Indictment No. 4077, pending in the Floyd Circuit Court.
Notes
. KRS 505.030(4), part of the new Kentucky Penal Code, contemplates that jeopardy attaches when the first witness is sworn, as distinguished from the swearing of the jury. We need not in this proceeding, however, pursue the ramifications of that distinction.