92 Ky. 134 | Ky. Ct. App. | 1891
delivered the opinion op the court.
The charge in the indictment, aa returned by the grand jury, was forgery. In considering the defendant’s de
The State, by this appeal, asks that the action of the court be reviewed. The sole question is whether the court had a right to make the change. The offenses of forgery and obtaining goods under false pretenses are distinct. Both existed at the common law, and if the court could make the change then it had the power to say that the accused, if he consented, could be tried upon a charge different from that found by the grand jury. Such a practice, were it lawful, would certainly not be a desirable one. The law creates courts and defines their powers. Consent can not authorize a judge to do what the law has not given him the power to do. The act of the court in this instance was not a mere irregular exercise of a power. If so, consent would have cured it; but it was an act beyond its power.
It is the sole province of the grand jury, under our law, to find an indictment. It, and not the court, must say upon what charge the party shall be arraigned. The
This opinion is ordered to he certified to the lower-court as the law of the cage.