"Under the former Criminal Code of Procedure, an amendment to include such an essential averment as the one in question would have been impossible, as only amendments as to form were permissible. However, the new Rules of Criminal Procedure are broader in this area. RCr 6.16 states: 'The court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of *40 the defendant are not prejudiced.’ This rule is based on Federal Criminal Rule 7(e) but is less restricted. The federal rule allows only an information to be so amended, restricting any amendment of the indictment to the grand jury.”
How later courts described this case
- "Under the former Criminal Code of Procedure, an amendment to include such an essential averment as the one in question would have been impossible, as only amendments as to form were permissible. However, the new Rules of Criminal Procedure are broader in this area. RCr 6.16 states: 'The court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of *40 the defendant are not prejudiced.’ This rule is based on Federal Criminal Rule 7(e) but is less restricted. The federal rule allows only an information to be so amended, restricting any amendment of the indictment to the grand jury.”
Written by the judges who cited it.
The opinion
AKER, Justice,
dissenting.
I concur with the majority opinion as it relates to the primary offense, however, I must respectfully dissent from the majority opinion as it relates to the persistent felony proceeding.
*722 The majority relies on the rule “that instruction on a lesser degree may be rejected if the evidence does not warrant it.” In applying this “well-settled” rule, the majority overrules a long line of cases standing for another well-settled rule — that a jury in a persistent felony proceeding must be given the option, when requested, of returning a verdict that the defendant has been convicted of both or only one of the convictions proved, regardless of whether the proof of convictions has been contradicted. Satterly v. Commonwealth, Ky., 437 S.W.2d 929 (1968); Rodgers v. Commonwealth, Ky., 399 S.W.2d 299 (1966); Marcum v. Commonwealth, Ky., 398 S.W.2d 886 (1966); Brown v. Commonwealth, 378 S.W.2d 608 (1964). This rule flows from the very nature of a persistent felony proceeding. The proceeding is solely for the purpose of sentence enhancement.
I understand the majority’s reasoning and I applaud the scholarly treatment of the progression of our ease law which the majority, by this opinion, overrules. However, if the jury is to have a function where two convictions are proved and are uncon-tradicted, the jury must have the right to return a verdict on the proof regarding these convictions, either as a group or separately. Therefore, I would not overrule the above-mentioned line of cases.