123 Ky. 336 | Ky. Ct. App. | 1906
Opinion of the Court by
Affirming.
Appellee was indicted upon the charge of false swearing. The accusation in the indictment runs: “The said Gr. H. Bray did wilfully, knowingly, and falsely swear and give in evidence the following false statement to-wit: ‘ That he never did make any trade with the said Gr. W. Morris of any kind whatever,’ when in fact and truth the said Gr. H. Bray had made a trade with said Morris, and then and there knew he had made said trade, and knew that said statement was false.” Whether the accused and Morris had made a “trade” depended upon whether they had had such negotiaitions as resulted in a legal contract between them. The result of such negotiations is a question of law. Whether that result is a binding legal contract is therefore a matter, of opinion concerning the legal effect of what had transpired. False swearing, as a crime, is a name given by the statute to the act of wilfully and knowingly deposing falsely in a sworn statement before some officer authorized to administer an oath, concerning some fact. Our statute reads (Section 1174, Ky. St. 1903): “Shall wilfully
The commonwealth’s attorney moved the court upon the demurrer’s having been sustained, to resubmit the ease to the grand jury, which was overruled. The commonwealth is complaining also of that action of the court. The Criminal Code provides that an indictment is demurrable if it show (1) that the offense charged is not within the jurisdiction of the court (section 166, Cr. Code Prac.); or (2) if the indictment improperly charge more than one' offense (section 168, Cr. Code Prac.); or (3) if the indictment contain matter which is a legal defense or bar to the prosecution (section 169, Cr. Code Prac.); or (4) if the facts stated do not constitute a public offense (section 165,
The purpose of this section is to allow the commonwealth to hold the custody of the accused pending the perfection of the pleadings in the case in which he is charged. Whether the accused should be held or not pending further investigation, seems to be left to the discretion of the court, and not to the prosecutor. The practice ordinarily is to grant this request of the commonwealth’s attorney for a resubmission to the grand jury where the form of the indictment is defective, and which may be cured by proper pleading. Such would doubtless have been the action of the court in this ease had it seemed probable that the case of the State could have been perfected by a better pleading. But the matter charged was, as we have seen, not indictable at all. No kind of pleadings could have helped out the case. For the deficiency was, not in accurate pleading, but in the matter charged as constituting the.offense. There is no suggestion in the record that the alleged false statement was not correctly set out. Then why harass the accused by holding him in court for further fruitless effort concerning the same thing? Such probably was the reasoning of the learned trial judge, and we are not prepared to say that he abused the judicial discretion with which he was invested by section 170, supra. The dismissal of the indictment was not a bar to further prosecution. Section 178 Cr. Code Prac.; Commonwealth v. Swanger, 108 Ky. 579, 22 Ky. L. R. 278; 57 S. W. 10.
Judgment affirmed.