¶1(dissenting).
¶2I disagree with the majority because I do not think the indictment was void. If it *840were defective at all, it was merely voidable and that question should have been raised before trial, not afterward. I think it is within the inherent power of a circuit judge, charged with the enforcement of the Criminal Law, to impanel a grand jury at any time he, in good faith, believes the situation justifies.
¶3Our Constitution divides our government into its three branches, the legislative, executive and judicial, and provides that “each of them [shall] be confined to a separate body of magistracy”. Ky.Constitution, § 27. And it further provides that neither of these departments of government “shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ky.Constitution, § 28. The courts of this state are all created by the Constitution, § 135, and the circuit courts are the courts of general trial jurisdiction, § 126. Even the essential structure of our grand juries is recognized in the Constitution, § 248.
¶4The grand jury is an institutional heritage which came over in the Máyflower. It goes back to Magna Carta (1215) and reached the essentials of its present form as early as the year 1300. See Busch, Law and Tactics in Jury Trials, Sections 11 and 15, citing ancient authorities. The grand jury is a part of our judicial system — • a part of the separate powers of the judiciary, and it is interesting to notice that our General Assembly, through its statutory enactments (Chapters 23 and 29) merely says when and how grand juries must be called, and makes no attempt to limit when they may be called.
¶5Within the twilight zone between the legislative and judicial branches of the government, the Legislature, in keeping with the powers implicitly and expressly delegated to it in the Constitution, §§ 125 through 138, has enacted legislation covering the jurisdiction of circuit courts, appeals from circuit courts, terms of such courts, compensation for circuit judges, creation of court districts, provisions for special judges and the appointment of additional judges, and the qualification and selection of juries and grand juries. All of this legislation is designed to standardize practices and to organize and facilitate the functioning of the judicial system. For us to ascribe an intention to the Legislature to cross over into the historic judicial field, to fetter the courts so they cannot function in an emergency in their historic judicial field, impliedly raises the question of the constitutionality of such legislation. If we construe legislation which says when and how grand juries must be called to mean that they may be called at no other time, we step out of that twilight zone between the branches of government and penetrate to the very heart of the inherent and historic power of the court and of the judge as a conservator of the peace. KRS 23.010. The danger of a pocket grand jury as a sort of secret weapon of the court is more than outweighed by the danger of denying to the court the power to act quickly and effectively in the detection, prevention and punishment of crime. If a tyrant should appear in judicial robes, this court has the power to stop him. Section 110 of the Constitution.
¶6It has been held in the case of United States Courts that no power exists in the court to call a grand jury into session apart from statute. This is easily explained, for under Article III of the United States Constitution, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Thus, all except the Supreme Court in the Federal system are creatures of Congress. But in Kentucky, all of our courts are creatures of the Constitution, § 135, and it is said in 38 C.J.S., Grand Juries, § 2, p. 984:
“In the United States, while effect is accorded constitutional and statutory provisions relating to the convening of grand juries by courts, courts invested with jurisdiction of criminal offenses, which can be prosecuted only on indictment or presentment of a grand jury, possess the power of summoning and impaneling grand juries apart from *841any express statutory authorization, the power being inferred as necessary and incidental to the discharge of the duty enjoined on the court in connection with the prosecution of offenses.”
¶7See, also, Williams v. People, 46 Colo. 183, 103 P.2d 298; Miller v. People, 183 Ill. 423, 56 N.E. 60.
¶8For the reasons mentioned, I am of the opinion that the judge of a circuit court charged with criminal jurisdiction has the inherent power to call a grand jury at any time he thinks, in good faith, that the situation requires him to do it regardless of whether there is a current term of court.