Edwards v. State

• Decision Date: 27 October 1942
• Docket Number: 27687.
• Citation: 44 N.E.2d 304,220 Ind. 490
• Parties: EDWARDS v. STATE.
• Court: Indiana Supreme Court

44 N.E.2d 304

220 Ind. 490

EDWARDS v. STATE.

No. 27687.

Supreme Court of Indiana

October 27, 1942

Appeal from Circuit Court, Knox County; Frank R. Ramsey, Special judge.

Shuler McCormick and Samuel M. Emison, both of Vincennes, for appellant.

George M. Beamer, Atty. Gen., and C. Ballard Harrison, Deputy Atty Gen., for appellee.

SWAIM Judge.

The appellant was convicted of the crime of assault and battery with intent to commit a felony, to-wit: rape, on an affidavit which charged that the appellant 'on or about the first day of November, 1939, at and in the County of Knox, State of Indiana, did then and there unlawfully and feloniously make an assault in and upon one, * * * a female under the age of sixteen (16) years, * * * and did then and there unlawfully and feloniously ravish and carnally know her, the said [name of girl] * * * .' (Our italics.) To this affidavit the appellant filed a plea of not guilty.

After the trial was commenced, the court, on motion of the prosecuting attorney, and over the objection of the appellant, permitted the affidavit to be amended by the insertion of the italicized words 'and did'.

The only question presented by the assigned errors is the action by the court in permitting the amendment of the affidavit during the trial.

Section 9-1133, Burns' 1933 (Supp.) § 2132-1 Baldwin's Supp. 1935, provides that '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 statute and similar modern statutes of other states evidence an intent to eliminate the effect of technical and formal defects which do not prejudice a defendant or affect his substantial rights, on the theory that in the development of the administration of justice, narrow technical formalism should be eliminated to the end that substantial justice may be attained. United States v. Fawcett, 3 Cir., 1940, 115 F.2d 764, 132 A.L.R. 404.

It only remains for us to determine whether the amendment of the affidavit in this case was of mere form or whether it was of substance such as to prejudice the substantial rights of the accused.

If the original affidavit was sufficient to charge the crime of rape the insertion of the two words was an amendment in form only and was expressly permitted by the above cited statute. Peats v. State, 1938, 213 Ind. 560, 12 N.E.2d 270.

The appellant contends that the affidavit in its original form neither charged the crime of rape nor the crime of assault and battery with intent to commit a felony, to-wit: rape. It is not necessary that the affidavit charge assault and battery with the intent to commit a felony if the affidavit properly charged the crime of rape, because under a proper charge of rape the defendant may be convicted for the lesser crime of assault and battery with the intent to commit rape. Leinberger v. State, 1933, 204 Ind. 311, 183 N.E. 798. If the appellant be correct in his contention that the original affidavit was not sufficient to charge the crime of rape, the amendment of the affidavit during the course of the trial constituted reversible error.

The appellant has cited Strader v. State, 1883, 92 Ind. 376, as authority to support his contention that the omission of the words 'and did' from the second part of the original affidavit constituted a fatal defect. In that case the court, on a motion to quash, passed on the validity of an information, the last clause of which stated that 'then and there, unlawfully and feloniously did ravish and carnally know.' There was no connective used between this clause and the foregoing part of the information and the court held that the clause, standing by itself, conveyed no definite legal meaning; and that it did not charge that the appellant ravished and carnally knew Addie Young or any other specifically named person. In the instant case there is no contention that the second part of the affidavit was not sufficient with the exception of the two omitted words, 'and did.'

Section 9-1127, Burns' 1933, § 2206, Baldwin's 1934, provides that no affidavit shall be deemed invalid nor set aside nor quashed, nor the trial judgment or other proceedings stayed, arrested or in any manner affected for certain specified defects, or 'For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'

The purpose of an affidavit is to inform a defendant of the specific crime with which he is charged. It is not necessary that the affidavit be couched in any particular words or phrased in any particular manner if it is sufficient to advise the defendant of the particular crime with which he is charged, so that he may have an opportunity to prepare his defense. Skelton v. State, 1909, 173 Ind. 462, 89 N.E. 860, 90 N.E. 897; Agar v. State, 1911, 176 Ind. 234, 94 N.E. 819.

This court has held that awkward or ungrammatical language will not invalidate an indictment if the meaning is plain to a common intent. Where the meaning is clear, mistakes in grammar, spelling, or punctuation do not vitiate the affidavit. Bader v. State, 1911, 176 Ind. 268, 94 N.E. 1009; Post v. State, 1926, 197 Ind. 193, 150 N.E. 99. It was held by this court in Walter v. State, 1885, 105 Ind. 589, 5 N.E. 735, 736, that an indictment which charged that a defendant sold intoxicating liquor without a license was good as against a motion to quash although the charge that the defendant did not have a license stated, 'the said Theodore Walter, not then and there having a license to sell such intoxicating * * *.', omitting the word 'liquor'. The court said that this was merely a clerical omission and did not constitute a fatal defect.

This court has not passed on the effect of the omission of the word 'did' from an affidavit or indictment where it was...