Dye v. Sacks, 37143

• Decision Date: 20 June 1962
• Docket Number: No. 37143,37143
• Citation: 183 N.E.2d 380,173 Ohio St. 422
• Parties: , 14 A.L.R.3d 1352, 20 O.O.2d 47 DYE v. SACKS, Warden.
• Court: Ohio Supreme Court

Page 422

173 Ohio St. 422

183 N.E.2d 380, 14 A.L.R.3d 1352, 20 O.O.2d 47

DYE v. SACKS, Warden.

No. 37143.

Supreme Court of Ohio.

June 20, 1962.

Clarence Dye, in pro. per.

Mark McElroy, Atty. Gen., Aubrey A. Wendt and John J. Connors, Jr., Columbus, for respondent.

PER CURIAM.

Petitioner's primary argument is based on the fact that the trial court permitted an amendment of the original indictment changing the name of the person petitioner allegedly robbed. This point has been urged before in this court in a habeas corpus proceeding where the relief sought was denied. In re Dye, 170 Ohio St. 97, 162 N.E.2d 520. The same point has been raised and held not to constitute error in the federal courts. Dye v. Sacks, Warden, 6 Cir., 279 F.2d 834.

At this point it might be well to set forth the proceedings upon which petitioner bases his claims.

The pertinent part of his indictment read as follows:

'Do find and present, that Clarence Dye in the county of Summit and state of Ohio aforesaid, on the 29th day of July, in the year of our Lord, one thousand, nine hundred and forty-six, unlawfully by force and violence, and by putting in fear, robbed one Joe Debroski, manager of Stone's Grille, of certain money of the total amount and value of three hundred sixteen and 65/100 dollars ($316.65), being the personal property of Stone's Grille, while he, the said Clarence Dye, was then and there, armed with a dangerous weapon, to wit: a revolver, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.'

The bill of exceptions shows the following in relation to the amendment of the indictment:

'Mr. Vuillemin: At the beginning of this case, and before the jury is brought in, I would like to make a motion at this time in the case of the State of Ohio vs. Clarence Dye, No. 23413, for leave to amend the indictment wherein it states: 'by putting in fear one Joe Debroski, manager of Stone's Grill,' and I would like to amend that to read: 'and robbed one Mary Debroski, co-manager of Stone's Grill.'

'The Court: The court will grant the amendment.

'Mr. Stewart: I except, Your Honor.

'The Court: Does that take you by surprise? If it does I will grant a continuance.

'Mr. Stewart: I withdraw the objection.

'The Court: All right. Call the jury.'

Thus the indictment was amended at the beginning of the trial, and the objection to the amendment was withdrawn by petitioner's counsel.

Section 2941.30, Revised Code, reads as follows:

'The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment or information or to cure a variance between the indictment or information and the proof, the accused is entitled to a discharge of the jury on his motion, if a jury has been impaneled, and to a reasonable continuance of the cause, unless it clearly appears from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. In case a jury is discharged from further consideration of a case under this section, the accused was not in jeopardy. No action of the court in refusing a continuance or postponement under this section is reviewable except after motion to and refusal by the trial court to grant a new trial therefor, and no appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court finds that the accused was prejudiced in his defense or that a failure of justice resulted.'

Under this section, amendments may be made to indictments as long as the amendment does not change the name or identity of the crime charged.

The crime for which petitioner was indicted was armed robbery. The amendment to the indictment made no change in the nature of the offense charged or the time or place of the offense. It merely changed the name of the person upon whom the crime was committed; in other words, it corrected a misdescription of the victim. The amendment was purely a matter of form and not of substance. There was no invasion of petitioner's constitutional rights, and there was no creation of a new indictment as contended by him; he was still charged with armed robbery at the same time and place.

Irrespective of the name of the victim, the crime charged was armed robbery, and the amendment did not change this in any way whatsoever.

Under the provisions of Section 2941.30, Revised Code, the court had the power to permit such amendment. This court in In re Stewart, 156 Ohio St. 521, 103...