Carson v. State, No. 779S177

• Docket Nº: No. 779S177
• Citation: 271 Ind. 203, 391 N.E.2d 600
• Case Date: July 05, 1979
• Court: Supreme Court of Indiana

Page 600

391 N.E.2d 600 271 Ind. 203 Wyvonia CARSON, Appellant,
v.
STATE of Indiana, Appellee. No. 779S177. Supreme Court of Indiana. July 5, 1979.

[271 Ind. 204]

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Bobby Jay Small, Indianapolis, Daniel W. Meehan, Cincinnati, Ohio, for appellant.

Theodore L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

GIVAN, Chief Justice.

Appellant was convicted of cruelty to children under IC § 35-14-1-4 (repealed by Acts 1976, P.L. 148, § 24, effective October 1, 1977) and was sentenced to three months' imprisonment. The Court of Appeals reversed and remanded the cause for a new trial on the ground that the trial court permitted the State to amend the information during voir dire to the substantial prejudice of appellant's rights. Carson v. State (1979) Ind.App., 384 N.E.2d 620. We find no reversible error in that issue but we do find other error in the record requiring the remand of the case. We therefore grant the State's petition to transfer.

The charging information alleged that appellant "did unlawfully, feloniously and wilfully abuse said child in that she severely beat said child about the shoulders and back." During voir dire examination, the prosecutor was permitted to amend the information by substituting the words "be cruel to" for the word "abuse". The Court of Appeals held that the amendment violated IC § 35-3.1-1-5(e) (Burns 1979). That section[271 Ind. 205] prohibits the State from amending an indictment or information to change the theory of the prosecution as originally stated. The reason for this holding was that under IC § 35-14-1-4, "abuse" of a child includes such acts as employing a child in an occupation dangerous to the health or morals of the child, the habitual use of obscene language or the performance of immoral acts in the presence of the child, and the disposal of the custody of the child contrary to law. The section of the statute defining cruelty, however, generally covers physical acts upon the child. Such acts as inflicting severe corporal punishment, suffering or pain upon a child, habitually tormenting a child and exposing a child to unnecessary hardship, fatigue or mental or physical strains are proscribed. The Court of Appeals reasoned that since "abuse" was charged in the information, the amendment to "be cruel to" was a change in substance rather than form. Hence, it was held the amendment prejudiced the substantial

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rights of appellant and compelled a reversal. 384 N.E.2d 623.

We cannot agree. An information need only state the crime charged in the language of the statute or in words which convey a similar meaning. In reviewing charging instruments, this Court will construe the language used in light of its common acceptance and understanding. Heflin v. State (1977) Ind., 370 N.E.2d 895. Here, the original information alleged that appellant "severely beat said child about the shoulders and back." The affidavit for probable cause alleged that appellant had beaten the child with the end of a fishing rod and that it had caused "welt-like markings on the upper back and on the arms and legs" of the child. It is clear that the theory of the prosecution has never changed from the outset. Appellant was charged with and was being prosecuted for physical cruelty to this child. Whether the word "abuse", "cruelty", "torture" or "torment" is used is immaterial; all of them can be taken to mean physical cruelty to a child within the meaning of the statute. The words the legislature chose are not words of art to be given strict connotations within the narrow parameters of the statutory definitions of the crimes. The information in the case at bar adequately informed appellant that she had violated the cruelty statute by physically beating the child. The amendment to bring it into conformity with the precise language of the statute was therefore one of form and not of substance. The trial court did not err in permitting the amendment.

[271 Ind. 206] Appellant further argues that the court erred in denying her motion to dismiss the amended information for failure to allege the element of "unnecessarily severe corporal punishment." This element is only one of several grounds for the offense of cruelty to a child under IC § 35-14-1-2. As stated above, the information need not specifically recite the precise...