
    Case 25 —INDICTMENT—
    October 15.
    Commonwealth v. Adams.
    APPEAL PROM CRITTENDEN CIRCUIT COURT.
    Indictment — Power op Court to Change Charge. — The trial court has no power, even with the consent of the accused, to change the charge in an indictment, although the facts stated constitute a different offense from that charged by the grand jury.
    W. J. HENDRICK, Attorney General, por appellant.
    The court had no right to change the offense charged in the indictment. If the descriptive part of the indictment did not contain a statement of facts sufficient to constitute the crime charged, then the court should have sustained the demurrer to the indictment.
    W. J. CRUSE POR APPELLEE.
    If an indictment charges a public offense within the jurisdiction of the court a demurrer should be overruled, and where the facts stated show that the defendant is guilty of an offense of lower degree than that charged the court may put him on trial for the lesser offense. (Commonwealth v. Maynard, 12 Ky. Law Rep., 710; Lee v. Commonwealth, 12 Ky. Law Rep., 872; Johnson v. Commonwealth, 12 Ky. Law Rep., 835; Swan v. Commonwealth, 5 Ky. Law Rep., 238.)
   OHIEE JUSTICE HOLT

delivered the opinion op the court.

The charge in the indictment, aa returned by the grand jury, was forgery. In considering the defendant’s demurrer to it the court expressed a doubt as to its sufficiency to support a conviction for that offense, but was ■of the opinion that the facts stated were sufficient to constitute the offense of obtaining goods under false pretenses. Thereupon, the defendant consented that the charge in the indictment might be changed from forgery to obtaining goods under false pretenses, and it was done by direction of the coui’t. It is claimed that this was done without-the defendant’s consent, his attorney merely agreeing to it without consulting him. The order of court shows otherwise, however, and as this record stands it must be accepted as true. The prosecuting attorney objected to the change, and after it was made moved to refer the case to the grand jury, but this was refused.

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 grand jury had not accused the defendant of obtaining-goods under false pretenses but with the crime of forgery,, and the judge had no power to assume its duties and alter the charge as fixed by it. There is a total want of power to thus act. Such a power is unknown to the law, and the act not in conformity to the law of the land.. If the judge could, with the consent of the defendant, thus alter this charge there is no reason why a judge may not, in any case, usurp the functions of the grand jury and change the nature of any offense, as fixed by its-presentment, provided the party accused consents to the-alteration. Such a practice would be contrary to good policy. While we point with pride to the fact that the-judiciary of this State has been singularly free from corruption, and the conduct of the distinguished judge-whose action is in question has given additional luster to this reputation, yet, to virtually divest the grand jury of the right to say for what a man shall be tried, and strip it of a power, which, in our State, it has always possessed, and vest it in one man, would, in our opinion, be-highly dangerous to the public interests and is unquestionably in violation of law.'

This opinion is ordered to he certified to the lower-court as the law of the cage.  