Indictment

Bouvier (1856) “A written accusation of one or more persons of a crime or misdemeanor, presented to, and preferred upon oath or affirmation, by a grand jury legally convoked.

To render an indictment valid, there are certain essential and formal requisites. The essential requisites are, 1st. That the indictment be presented to some court having jurisdiction. of the offence stated therein. 2d. That it appear to have been found by the grand jury of the proper county or district. 3d. That the indictment be found a true bill, and signed by the foreman of the grand jury. 4th. That it be framed with sufficient certainty; for this purpose the charge must contain a certain description of the crime or misdemeanor, of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation.

There are certain terms of art used, so appropriated by the law to express the precise idea which it entertains of the offence, that no other terms, however synonymous they may seem, are capable of filling the same office: such, for example, as traitorously, (q.v.) in treason; feloniously, (q.v.) in felony; burglariously, (q.v.) in burglary; maim, (q.v.) in mayhem, &c. 7th. The conclusion of the indictment should conform to the provision of the constitution of the state on the subject, where there is such provision; as in Pennsylvania, Const. art. V., s. 11, which provides, that "all prosecutions shall be carried on in the name and by the authority of the commonwealth of Pennsylvania, and conclude against the peace and dignity of the same."

Securing an indictment is the first step in a criminal proceeding. An accusation is presented to a county’s grand jury, who determines if there is sufficient evidence to warrant a trial. The indictment must be found in the county where the crime was committed. In Kentucky, grand juries are convened by the circuit courts, which convene quarterly in each county. A Judge and Commonwealth’s Attorney serve a district of neighboring counties, travelling the circuit to preside over the meetings of each county’s circuit court in turn.

Circuit Courts should not be confused with County Courts, which are primarily administrative bodies under Kentucky law. Though presided over by a County Judge (now clarified as a County Judge Executive in Kentucky), the judicial power of County Courts was limited primarily to misdemeanors and issuing citations.

At the grand jury session, the Commonwealth’s Attorney (equivalent to a district or state’s attorney elsewhere) serves as the prosecutor and frames the charge according to very specific “terms of art” that hearken back to old principles in English common law. A number of cases are presented at a single grand jury term, and the ones found “True Bills” pass on to trial at a future term of the Circuit Court.

This indictment charges prewar Congressman turned Confederate Senator William E. Simms with treason against Kentucky. Because of its intense political division, Kentucky passed a state-level treason law that made every Kentuckian who joined or aided the Confederate cause a criminal against the state. The Bourbon Circuit Court printed forms like this to indict a number of rebels from the county after the Confederate invasion of the summer and fall of 1862. Simms was indicted alongside fellow Bourbon Countian, Provisional Confederate Governor Richard Hawes.

The “terms of art” to describe treason are drawn from the state and federal constitutions as well as the state treason legislation. Like all indictments, this one ends by framing the crime as one “against the peace and dignity of the Commonwealth of Kentucky,” which all laws are designed to uphold and defend.

Commonwealth’s Attorney W. S. Downey signs the indictment and lists the witnesses who will be called at the trial. On the reverse of the document, the court clerk has recorded the case history: The official case title; the signed finding of a True Bill by the foreman of the Grand Jury; the date the indictment was found and filed; the date the bench warrant to arrest Simms for trial was issued; and notation of postponement because Simms couldn’t be arrested.

The final notations show the clerk’s fees paid to James and Ben G. Paton for copying and the Governor’s office internal notation about what to do with Simms’s case. After the war ended, the state treason laws were bogging down courts. Again, theoretically every rebel in the state could be brought to trial. Plus, any actions done by Confederate soldiers while in the army could be considered criminal acts under Kentucky law. It was legal chaos, and dangerous, too. If regularly enlisted and surrendered rebels did not feel safe from their local courts, they had every incentive to join the bands of guerrillas and outlaws still plaguing every corner of the state. In Simms’s case, Governor Bramlette has respited the charge until the General Assembly would convene and repeal the state treason laws (December 1865) and remove the threat of civil or criminal proceedings against any soldier, Union or Confederate, who acted under proper military authority (February 1867).