dissenting.
Section 12 of the Kentucky constitution provides as follows:
No person, for an indictable offense, shall be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia, when in the actual service in time of war or public danger, by leave of court for oppression or misdemeanor in office.
*185An indictable offense is defined as one that carries an infamous punishment which includes offenses punishable by imprisonment in the state penitentiary. Lakes v. Goodloe, Ky. 195 Ky. 240, 242 S.W. 632 (1922). An indictment is of fundamental importance in the criminal process because it determines both the subject matter jurisdiction of the trial court and the status of the accused. Commonwealth v. Adams, Ky., 17 S.W. 276 (1891): King v. City of Pineville, Ky., 222 Ky. 73, 299 S.W. 1082 (1927): Singleton v. Commonwealth, Ky., 306 Ky. 454, 208 S.W.2d 325 (1948).
The jurisdiction conferred by an indictment extends only to the offense charged and any lesser included offense. Cody v. Commonwealth, Ky., 449 S.W.2d 749, 751 (1970). The indictment has been held not to be subject to waiver. Commonwealth v. Adams, Ky., 17 S.W. 276, 277 (1891). To quote Commonwealth v. Adams:
The law creates courts and defines their powers. Consent [by the accused] can not authorize a judge to do what the law has not given him the power to do .... 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.
Id., 17 S.W. at 277.
RCr 6.02(1) permits the waiver of an indictment by the defendant, requiring only that same be in writing. The rule itself specifically refers to Section 12, noting that the Constitution requires that certain offenses be prosecuted by indictment. That rule was promulgated by the authority given to us in Section 116, which gives to the Supreme Court the power to prescribe the rules of practice and procedure for the Court of Justice. To my mind, practice and procedure simply do not rise to the level of a guaranteed constitutional right to face only those charges with an infamous punishment that have passed through the Grand Jury process. Practice and procedure tell you how to prosecute a charge, not which court has the authority to pass judgment on it. The power granted to this Court by Section 116 does not, in my view, additionally give us the power to determine that a separate section of the same Constitution need not be preserved and followed. I would hold that RCr 6.02(1) is unconstitutional and, therefore, the judgment appealed from is void as it has no constitutionally valid basis.
LAMBERT, C.J., concurs.