Aikens v. State

• Decision Date: 13 November 1972
• Docket Number: No. 472A199,472A199
• Citation: 154 Ind.App. 36,289 N.E.2d 152
• Parties: Marvin Lee AIKENS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 152

289 N.E.2d 152

154 Ind.App. 36

Marvin Lee AIKENS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 472A199.

Court of Appeals of Indiana, Second District.

Nov. 13, 1972.

Rehearing Denied Dec. 29, 1972.

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY--Defendant-appellant Marvin Lee Aikens (Aikens) was convicted by a jury of Theft From The Person and seeks reversal because of a variance as to the date of commission of the crime in the State's Answer to Notice Of Alibi and the charging Affidavit. We affirm.

FACTS--The facts supporting the conviction are:

On January 25, 1971, an Affidavit charging Aikens with the crime of Robbery was filed alleging that the robbery occurred on October 31, 1970. Trial was set for September 20, 1971. On September 15, 1971, five days prior to trial, Aikens filed a Notice Of Alibi pursuant to Ind.Ann.Stat. § 9--1631 (Burns 1956), IC 1971, 35--5--1--1. In addition, Aikens requested the State to waive the eight-day period allowed by Ind.Ann.Stat. § 9--1632 (Burns 1956), IC 1971, 35--5--1--2 within which time the State was required to respond to a Notice Of Alibi.

The State complied with the request by immediately filing an Answer To Notice Of Alibi, which mistakenly alleged that the crime had been committed on October 31, 1971, some six weeks into the future.

Trial commenced on September 20, 1971. When the State attempted to introduce evidence during trial relative to the evening of October 31, 1970, this exchange took place as a result of objection by counsel for Aikens:

'Q. Now, if you will, tell the jury whether or not on the evening of October thirty-first, 1970, you had occasion to see the defendant, Marvin Aikens?

MR. NEEL: To which we object, Your Honor, on the ground that the date of October thirty, 1970, is irrelevant due to the answer of the notice of alibi as being a different date than October thirty, 1970.

MR. STEWART: I said October thirty-first, 1970.

MR. NEEL: I'm sorry, even October thirty-first, 1970.

THE COURT: Yes, that is a different date than in your response, is it not?

MR. STEWART: It shouldn't be.

MR. NEEL: Well, it is.

MR. STEWART: That is a typographical error. This was prepared yesterday for Mr. Neel.

MR. NEEL: For that reason, Your Honor, we are going to object on the grounds that it is different from the date in which the answer has been filed.

MR. STEWART: Your Honor, the alibi notice was filed September fifteenth. We agreed to waive our ten day time period to file a response, I did that yesterday at Mr. Neel's request prior to the commencement of this trial, and he well know that date of seventy-one is a typographical error, and I move to correct it.

THE COURT: Well, I think that the State waived their right not to have an alibi notice filed, but I think did not undertake to assume the obligation of filing their response since they did not have the eight day period which was required by statute. So for that reason I think in the filing of answer to notice of alibi, that was something which the State was not required to do. I will treat that answer as mere surplusage and overrule the objection. Now read that last question.'

After the Prosecutor's explanation that the erroneous date of October 31, 1971 contained in the Alibi response was obviously a typographical error, the court admitted evidence relative to October 31, 1970 and ruled that the State's Alibi response was merely surplusage.

Aikens was found guilty by the jury of Theft From The Person and sentenced to the Indiana State Reformatory for not less than one nor more than ten years.

ISSUE--Is it reversible error to admit evidence of the date of commission of the crime charged in the Affidavit which is at variance with the date recited in the State's Answer To Notice Of Alibi due to a typographical error in the Answer?

Aikens' position is that when the Alibi Statute is invoked, time becomes of the essence. The date contained in the State's reply to Aikens' Notice Of Alibi in effect amended the Affidavit and therefore only evidence relative to the future date of October 31, 1971 could be introduced.

In reply, the State asserts that minor variances in names, places, and times are not sufficient to invalidate criminal proceedings. The typographical error in the State's reply to Aikens' Notice Of Alibi did not operate to prejudice or mislead Aikens because the date of October 31, 1971 was almost six weeks in the future from the date of the trial, i.e., from September 20, 1971 to October 31, 1971.

DECISION--It is our opinion that it is not reversible error to admit evidence of the date of commission of a crime charged in the Affidavit which is at variance with the date recited in the State's Answer To Notice Of Alibi due to a typographical error in the Answer.

Generally, time is not of the essence in proving a criminal offense. Where the Alibi Statute is invoked, however,...