## Facts

- A Wolfe County grand jury indicted Leonard Cundiff for carnal sexual intercourse with Anna Cundiff, a female under sixteen years of age.
- Cundiff deposited $500 with the jury fund trustee in lieu of bail, and trial was set for a later term.
- The Commonwealth sought attachments for Anna and her parents, Laura and Willie Cundiff, as witnesses.
- Anna and her parents filed affidavits asking that the prosecution be dismissed and that Anna not be compelled to testify, citing her physical and mental condition and the humiliation associated with testifying; Anna also stated Cundiff was her cousin and the father of her child.
- Over the Commonwealth’s attorney’s objection and on its own motion, the circuit court ordered the indictment “filed away,” returned the $500 deposit, and discharged Cundiff.
- The Commonwealth appealed from the order terminating the prosecution.

## Issues

1. Whether a trial court may, on its own motion and over the Commonwealth’s objection, effectively terminate a criminal prosecution by ordering a valid indictment “filed away,” returning bail (or a deposit in lieu of bail), and discharging the defendant.

## Decision

- The Kentucky Court of Appeals reversed the trial court’s order.
- The court held the trial judge lacked authority to prevent prosecution by “filing away” a valid indictment over the Commonwealth’s objection.
- The case was remanded for further proceedings with the indictment remaining in force.

## Legal Principles

- Decisions to abandon or discontinue a public prosecution (including the functional equivalent of a nolle prosequi) belong to the prosecuting authority, not the court acting unilaterally.
- A trial court may not dismiss or indefinitely suspend a valid indictment without legal basis, particularly where the Commonwealth insists on proceeding.
- A complaining witness’s and family members’ requests to end the case, even for sympathetic reasons, do not transfer control of the prosecution to the court and do not justify judicial termination of the case over the prosecution’s objection.
- Criminal prosecutions are matters of public concern; judicial action must be governed by law rather than sympathy for the parties or witnesses.

## Conclusion

The court held that a trial judge cannot, over the Commonwealth’s objection, terminate a criminal case by “filing away” a valid indictment and discharging the defendant; prosecutorial discretion to proceed or abandon the case rests with the Commonwealth, and the prosecution must be allowed to continue.


Commonwealth v. Cundiff, 147 S.W. 767 (Ky. Ct. App. 1912)