Drury v. State, 28026.

Decision Date14 February 1945
Docket NumberNo. 28026.,28026.
Citation59 N.E.2d 116,223 Ind. 140
PartiesDRURY v. STATE.
CourtIndiana Supreme Court


Thomas E. Drury was convicted of assault and battery on an amended affidavit charging assault and battery with intent to kill, after having been convicted in city court under an affidavit charging assault and battery, and he appeals.

Reversed with instructions.Appeal from Vanderburgh Circuit Court; Nat H. Youngblood, judge.

Paul Wever and Theodore Lockyear, both of Evansville, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, First Deputy, and Forrest P. Jones, Deputy Atty. Gen., for appellee.

STARR, Judge.

An affidavit was filed in the City Court of the City of Evansville charging the appellant with assault and battery. He entered a plea of not guilty and was tried and convicted. He thereupon appealed to the Vanderburgh Circuit Court, which court permitted the filing, without the consent of appellant, of an ‘amended’ affidavit charging the appellant with assault and battery with intent to kill, although the plea entered in the city court had never been withdrawn or in any way vacated or set aside. He was thereupon tried on the ‘amended’ affidavit and was again convicted of assault and battery.

Whether the court below erred in permitting the filing of the ‘amended’ affidavit is the only question presented.

The right to amend an affidavit is conferred by statute. Burns' 1942 Replacement, § 9-1124, Baldwin's 1934, § 2186, permits the amendment of an affidavit in matter of substance or form at any time before the defendant pleads, while Burns' 1942 Replacement, § 9-1133, Baldwin's Supp. 1935, § 2132-1, provides: ‘The court may at any time before, during or after the trial amend the indictment or affidavit in respect to any defect, imperfection or omission in form, provided no change is made in the name or identity of the defendant or defendants or of the crime sought to be charged.’

This amendment changed the crime sought to be charged, as the crime charged in said amended affidavit is a felony, while the one charged in the original affidavit is only a misdemeanor. Burns' 1942 Replacement, § 9-101, Baldwin's 1934, § 2009; State v. Hattabough, 1879, 66 Ind. 223. They are separate offenses. Without deciding whether such an amendment could be made under any state of facts over appellant's objection, certainly it was error to allow same after appellant had interposed his plea. An amendment under Burns' 1942 Replacement, § 9-1124, Baldwin's 1934, § 2186, must be made before the defendant pleads. As the prosecution originated before the City Court of the City of Evansville, and as the appellant was there arraigned and pleaded to the affidavit, as affirmatively shown by the record, any further arraignment and plea was unnecessary, and the appellant should have been tried upon said affidavit which was filed before said city court. Eisenman v. State, 1875, 49 Ind. 520;Doench v....

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  • Pettibone v. Moore
    • United States
    • Indiana Supreme Court
    • February 15, 1945
    ... ... unhampered by any rules or questions of state policy peculiar ... to the ordinary administration of intestate property to which ... it has no ... ...

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