Dixon v. State
| Decision Date | 26 September 1945 |
| Docket Number | 28089. |
| Citation | 62 N.E.2d 629,223 Ind. 521 |
| Parties | DIXON v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Marion Criminal Court; William D. Bain, Judge.
T Ernest Maholm, of Indianapolis, for appellant.
James A. Emmert, Atty. Gen., and Frank E. Coughlin, First Asst Atty. Gen., for appellee.
On April 29, 1944, an affidavit was filed in the Criminal Court of Marion County, charging appellant with receiving and concealing stolen goods. The goods alleged to have been received and concealed were only generally described as 'electric motors, radios, electric irons, electric toasters, electric grills and other electrical equipment,' and the date of the alleged receipt and concealment was alleged to be February 10, 1943. It was alleged that the goods had been stolen by one Dewey Elliott and that they belonged to persons unknown.
During the course of the trial Elliott was asked to state the first date upon which he had any transaction with the defendant. His answer was that the first date he sold appellant anything was the latter part of May or the first part of June. Appellant's counsel moved that this answer be stricken for the reason that evidence of receiving stolen goods upon dates subsequent to the date alleged in the affidavit was inadmissible. The motion was overruled and this ruling is the first error urged by appellant in his motion for a new trial and in his brief. Our statutes provide that the precise time of the commission of an offense need not be stated in the indictment or affidavit, and that it is sufficient if the offense is shown to have been committed within the statute of limitations, except where time is an indispensable ingredient in the offense. Burns Ind.Stat 1942 Replacement, § 9-1106, Baldwin's 1934, Sec. 2189. This court has held many times that time is not of the essence of criminal offenses, except where the offense is in doing the thing charged upon a certain date. Ordinarily it is enough to show that the offense was committed before the affidavit was filed and within the statute of limitations. Crickmore v. State, 1937, 213 Ind. 586, 591, 12 N.E.2d 266; Peats v. State, 1937, 213 Ind. 560, 567, 12 N.E.2d 270; Hunt v. State, 1927, 199 Ind. 550, 555, 556, 159 N.E. 149; Boos v. State, 1914, 181 Ind. 562, 570, 105 N.E. 117. It follows that proof of receiving stolen goods from the person named in the indictment at a time other than that charged in the affidavit was proper if the date or dates proved were before the affidavit was filed and within the statute of limitations, which was true in this instance. Therefore there was no error in overruling the motion to strike here under consideration.
Immediately following this ruling of the court the State asked leave to amend the affidavit by changing the date upon which it was charged the offense was committed from February 10, 1943, to September 18, 1943, and this motion was sustained by the court and the affidavit was amended accordingly. The affidavit was not resworn to and the trial proceeded without reswearing the witnesses or plea by defendant to affidavit as amended. This is alleged as error in the motion for a new trial.
If time is not of the essence of the offense, as we have held, then the amendment would not alter the indictment in any material respect and would be, therefore, harmless and not ground for reversal. Peats v. State, 1937, 213 Ind. 560, 567, 12 N.E.2d 270; Crickmore v. State, 1937, 213 Ind. 586, 592, 12 N.E.2d 266, 268.
It may be added that our statutes specifically provide for amendment of indictments and affidavits 'at any time before, during or after the trial * * * in respect to any defect, imperfection or omission in form, provided no change is made in the name or identity to the defendant or defendants or of the crime sought to be charged.' Burns Ind.Stat., 1942 Replacement, § 9-1133, Baldwin's 1934, Sec. 2132-1. Here is a statutory provision specifically permitting amendment of indictments and affidavits as to form during or even after trial, provided no change is made in the defendant or the crime sought to be charged. Exactly the same defendant is named and the same crime is charged in exactly the same language in the affidavit after amendment as before. The only change was in date which did not go to the substance of the offense and was immaterial. This statute permitted this amendment and does not require that the affidavit be resworn to or that any other formalities be complied with. It is clear that it was not contemplated by the legislature that the affidavit be resworn to because the same section provides for amendments in indictments as well as affidavits, and if it was contemplated that an affidavit had to be resworn to it would seem to follow that an indictment would have to be resubmitted to the grand jury, which is clearly not the intent of the statute.
Appellant in this connection, calls attention to § 9-1124, Burns Ind.Stat., 1942 Replacement, Baldwin's 1934, Sec. 2186, which provides that an affidavit, but not an indictment, may be amended in matters of substance at any time before the defendant pleads, and under this statute it is specifically provided that when the affidavit is amended it shall be resworn to. This statute does not apply to the case before us. Also the fact that the provision for reswearing appears in § 9-1124 (2186) and does not appear in § 9-1133 (2132-1) indicates that the legislature had a different thought and idea in connection with § 9-1133 (2132-1) and it is natural that it should. It provides for amendments as to form only, and provides that they may be made at any stage of the trial, whereas the statute which requires reswearing applies also to amendments in matters of substance and permits such amendments only before the defendant pleads. There is good reason why an affidavit should be resworn to where matters of substance are amended and not where the...
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