Commonwealth v. Swanger

Opinion of the coubt by JUDGE BURNAM Affibming. Appellee, W. T. Swanger, was indicated by the grand jury of Mason county for perjury. A general demurrer was sustained to the indictment, and thereupon the Commonwealth’s Attorney moved the court to refer the charge to the grand jury then in session, but the court overruled the motion and directed that the defendant be discharged. We are asked upon this appeal to reverse the judgment of the lower court both on the demurrer and in its refusal to again refer the charge to the grand jury. The indictment which is the basis of this prosecution fails to allege that the testimony given by the appellee was with felonious intent. It is well settled that the word “feloniously” is indispensable to the validity of every common law indictment for a felony, and for this reason, if for no other, the lower court did not err in sustaining the demurrer. This question was fully considered by this court in the case of Kaelin v. Com., 84 Ky., 354, (1 S. W., 594), and in the opinion rendered in that case all of the authorities were cited. The motion by the Commonwealth’s Attorney to resubmit the charge to another grand jury was predicated upon section 170 of the Criminal Code of Practice, which reads as follows: “If the demurrer be sustained on any [581] other grounds than those mentioned in the four last see-tions the case may be submitted to another grand jury, and an order to that effect may be made by the court on the record, whereupon the defendant shall be held in custody or on bail in the manner and for the time provided in sections 159 and 160.” The provisions of this section of the Code are not mandatory upon the court, like section 159, which prescribes that “if an indictment be set aside for any of the grounds set out in section 158 and sub-sections thereunder, the court shall make an order that the case be submitted to another grand jury,” but appeals to his sound discretion. The indictment charges in substance that the defendant was being tried before a justice of the peace, as an examining court, upon a charge for failing to support his family, and that in this proceeding he falsely testified that he and one Mary Jefferson never were in Mt. Sterling, — that he was' only in Mt. Sterling about eight years before. As the charge in the in dictment was for failing to support his family in 1898, this testimony was not necessarily material in determining the guilt or innocence of the defendant of the offense which was being examined into, and we are not disposed to say that there was any abuse of discretion on the part of the trial judge in refusing to again submit the matter to another grand jury; but, as defendant was not put in jeopardy on the charge contained in the indictment, the refusal of the court to again submit the matter to another grand jury would not be a bar to an investigation by another grand jury, if they should see fit to do so. For reasons indicated, the judgment is affirmed. •