Dennis v. State, 28735
| Decision Date | 07 January 1952 |
| Docket Number | No. 28735,28735 |
| Citation | 102 N.E.2d 650,230 Ind. 210 |
| Parties | DENNIS v. STATE. |
| Court | Indiana Supreme Court |
Howard R. Hooper, Indianapolis, for appellant.
J. Emmett McManamon, Atty. Gen., John Ready O'Connor, George W. Hand, Deputy Attys. Gen., for appellee.
Appellant was indicted under the Acts of 1935, ch. 124, § 1, p. 465, being § 9-103, Burns' 1942 Replacement, on the charge of accessory after the fact of murder. Upon a plea of not guilty appellant was tried by jury, found guilty and sentenced to the Indiana State Prison for life.
Appellant's assignment of errors contains three specifications: (1) That the court erred in sustaining appellee's motion to amend the indictment; (2) The court erred in overruling the appellant's motion in arrest of judgment; (3) That the court erred in overruling appellant's motion for a new trial.
First: In view of the decision we have reached the questions presented by specifications one and two might arise in a new trial, so we shall consider them in this appeal. These assignments present substantially the same question and will be considered together. The question thus presented is: Did the trial court err in permitting the state to amend the indictment after plea by adding the words 'well knowing the commission of the felony aforesaid by the said Sam Dennis'?
After a defendant has entered his plea to a criminal charge, the state cannot amend the affidavit or indictment as to matters of substance. State ex rel. Kaufman v. Gould, 1951, 229 Ind. 288, 98 N.E.2d 184, 185, and cases there cited.
Said § 9-103, Burns' 1942 Replacement, provides as follows: (Our italics.)
The indictment under which appellant was tried and convicted, omitting formal parts, is as follows: 'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that George Dennis on or about the 22nd day of June, A. D. 1946, at and in the County of Marion and in the State of Indiana, not standing in the relation of husband or wife, parent or child, of Sam Dennis, did then and there in the County and State aforesaid, unlawfully and feloniously harbor, conceal and assist the said Sam Dennis with intent that the said Sam Dennis should then and there and thereby escape from detection, arrest, capture and punishment for the commission of the crime of First Degree Murder, after the said Sam Dennis, on this 22nd day of June, 1946, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Thomas Bridewell, * * * And so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said George Dennis, not standing in the relation of husband or wife, parent or child, of Sam Dennis [and well knowing the commission of the felony aforesaid by the said Sam Dennis 1 and in the manner and form, and by the means aforesaid, unlawfully and feloniously did then and there harbor, conceal and assist the said Sam Dennis with the intent that the said Sam Dennis should then and there and thereby escape from the detection, arrest, capture and punishment for the commission of said crime, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.' (Our italics.)
It is readily apparent from a comparison of the affidavit and statute as above set out that appellant is charged with the crime defined in said § 9-103 in as nearly the identical language of the statute as it would be possible to use.
The indictment, before the amendment was made, was substantially in the language of the statute. It was, therefore, sufficient to charge the alleged offense before it was amended. State v. Snyder, 1879, 66 Ind. 203; Hicks v. State, 1926, 197 Ind. 294, 150 N.E. 759, 115 A.L.R. 360; Bielich v. State, 1920, 189 Ind. 127, 126 N.E. 220.
Since the indictment was sufficient without the amendment, it follows that the phrase added by the amendment was surplusage and did not in any way change the crime charged or prejudice the substantial rights of the defendant (appellant). The amendment was not one of substance and it was not reversible error for the trial court to permit it to be made. The indictment was not rendered insufficient or improper by the surplusage contained in the amendment. Souerdick v. State, Ind.Sup., 1951, 102 N.E.2d 367; Sheets v. State, 1940, 217 Ind. 676, 680, 30 N.E.2d 309; Ruffenbarger v. State, 1921, 190 Ind. 616, 618, 131 N.E. 514.
The trial court committed no error in sustaining appellee's motion to amend the indictment or in overruling appellant's motion in arrest of judgment.
Second: Having disposed of the question which might arise on a retrial of this action, we now consider appellant's assigned error No. 3 which is that the court erred in overruling appellant's motion for a new trial. While this motion contains six alleged errors the substantial question which it presents is that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. Appellant contends that there was insufficient evidence to sustain the conviction because there was no evidence of corpus delicti except the statement made to the police officers by appellant at the Indianapolis Detective office in police headquarters on July 29, 1946.
This court said in Parker v. State, 1950, 228 Ind. 1, 6, 88 N.E.2d 556, 557, 89 N.E.2d 442:
Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone. Parker v. State, 1950, 228 Ind. 1, 6, 88 N.E.2d 556, 89 N.E.2d 442, supra.
In order to prove the corpus delicti in the case at bar there must be some evidence of probative value aside from the extra-judicial statement of appellant, which he signed at the police station on July 29, 1946, showing that the crime charged in the indictment was committed by someone. Parker v. State, 1950, 228 Ind. 1, 7, 88 N.E.2d 556, 89 N.E.2d 442, supra.
In order to sustain a conviction herein, it was necessary for the state to produce evidence of probative value aside from said extra-judicial statement, showing that appellant performed some personal act whereby he harbored, concealed or assisted his brother, Sam Dennis, for the purpose of helping him to evade capture and punishment for the crime which he had committed. The words 'harbor', 'conceal', and 'assist' are not specifically defined in the act hence they will be given their ordinary and usual meaning consistent with their use.
'Harbor' as here used means to shelter, to give...
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Brown v. State, 29661
...precedents of this court should remain the law of Indiana. We reaffirmed the rule of the Parker case, supra, in Dennis v. State, 1952, 230 Ind. 210, 216, 102 N.E.2d 650; Simmons v. State, 1955, 234 Ind. 489, 492, 129 N.E.2d 121; and Tylor v. State, 1957, 236 Ind. 415, 421, 140 N.E.2d 104. S......
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...that makes resort to out of state decisions unnecessary. Simmons v. State (1955), 234 Ind. 489, 129 N.E.2d 121; Dennis v. State (1952), 230 Ind. 210, 102 N.E.2d 650; Parker v. State (1949), 228 Ind. 1, 88 N.E.2d 556; Hawkins v. State (1941), 219 Ind. 116, 37 N.E.2d 79; Gaines v. State (1921......
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...act whereby he furthered the murder of Bruce Lykins. In order to sustain a conviction herein, such proof is necessary. Dennis v. State (1952), 230 Ind. 210, 102 N.E.2d 650." Appellant's Brief at 20.In Dennis the defendant was charged with being an accessory, after the fact, by having helped......
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Simmons v. State
...actually been committed by someone. Parker v. State, 1950, 228 Ind. 1, 6, 88 N.E.2d 556, 89 N.E.2d 442, supra.' Dennis v. State, 1952, 230 Ind. 210, 216, 102 N.E.2d 650, 653. 'The rule seems to be well established generally that an extra judicial confession will not be admitted in evidence ......