Froedge v. State

• Decision Date: 24 January 1968
• Docket Number: No. 30926,30926
• Citation: 249 Ind. 438,233 N.E.2d 631
• Parties: James FROEDGE, Sr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 631

233 N.E.2d 631

249 Ind. 438

James FROEDGE, Sr., Appellant, v.STATE of Indiana, Appellee.

No. 30926.

Supreme Court of Indiana.

Jan. 24, 1968.

H. Hanly Hammel, Jr., Lafayette, for appellant.

John J. Dillon, Atty. Gen. of Indiana, Ronald S. Timmons, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

This is an appeal by the appellantJames Froedge, Sr., from a conviction under an indictment charging him with the offense of aggravated assault and battery.

The statute under which the indictment was returned reads as follows, to-wit:

' § 10--410.Aggravated assault and battery--Penalty.--Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery and upon conviction shall be imprisoned in the state prison for not less than one (1) year nor more than five (5) years, to which may be added a fine in any amount not to exceed one thousand dollars ($1,000).'

The appellant in his assignment of error presents for review the following asserted specifications of error:

(1) The denial of appellant's motion to quash the indictment;

(2) overruling of appellant's motion for a new trial;

(3) denying appellant's motion for a directed verdict.

The motion to quash filed is in the appellant's words and figures as follows:

(1) The indictment does not state facts sufficient to constitute a public offense.

(2) The indictment does not state an offense with sufficient certainty.

The appellant contends that the indictment returned by the Grand Jury of Benton County as revealed by the transcript of the record reads as follows, to-wit:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is readily apparent from an examination of the indictment that there is a difference between the body of the indictment and the title thereof in that the title of the indictment as typed names the defendant as James Froedge, Sr., while in the body of the indictment as originally typed, the defendant's name was spelled as follows, to-wit: James Groedge, Sr.

However, it is also abundantly clear that the spelling of the defendant's name as James Groedge, Sr., in the body of said indictment was clearly a typographical error that was corrected by the foreman of the jury by the superimposing or overlaying with pen of the letter 'G' with the letter 'F' in the spelling of the defendant's name and said correction of said typographical error was initialed by the foreman with the designation of 'B.M.'And said change was clearly legible.The record as it appears above and as shown by the transcript duly authenticated and certified by the Clerk and Judge of the Benton Circuit Court imputes its verity as having been so corrected by the foreman on May 21, 1965 the date of its return by the Grand Jury.We therefore will not go behind the record as presented by the appeal to this Court.Assuming, without admitting, for the purpose of argument that the above might be a defect in form as set forth in BurnsAnn.Stat. § 9--1133 (1956 Repl.):

' § 9--1133.Amendment of indictment or affidavit for defect in form.--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.'

we nevertheless do not agree that the case of State v. Boss(1881), 74 Ind. 80 cited by the appellant would warrant this Court in ruling that it is controlling of this issue as presented in the case before us.That case gives the appellant no support, for there the title or caption named one William Fulk as the defendant while the body of the indictment named one Napoleon Boss as such defendant.This Court held that there was ample matter alleged in the indictment to indicate Boss was the person charged notwithstanding the repugnancy between the title and the body of the indictment.

The appellant also cites the case of Howard v. State(1879), 67 Ind. 401, as support for his asserted assignment of error #1 above.The Howard case involved a clear discrepancy between the crime charged in the caption and the crime charged in the body thereof and therefore is clearly distinguishable.

The appellee State cites the case of French v. State(1859), 12 Ind. 670 as authority for a correction of the obvious typographical error previously alluded to herein.Therein this Court held that interlineations in the indictment that were clearly legible were not bad simply because of such interlineations, and in the absence of anything being shown extrinsically tending to show that such interlineations were made subsequent to its return and filing it will be presumed that they were made before or at the time of its execution.Execution, in that case as in this, is analagous to the date of the presentment, return and filing of said indictment as a true bill.In French as here there is no extrinsic showing in the record before us to form an issue as a basis for challenge to the verity of the record.

We therefore hold that said asserted error is untenable, and that the change as made and initialed by the foreman must be presumed to have been corrected at the time of the return and filing of the indictment with the Clerk of the Benton Circuit Court, and that such a correction of a typographical error as indicated could be made at any time before the grand jury was discharged and prior to trial by such a correction or upon order of the court.Such correction in no way prejudiced the defendant nor is it a substantial departure from the provisions of § 9--1133, supra.

In holding thereby our position is not contrary to the provisions of § 9--1133, supra, and Burns' Ann.Stat. § 9--1127 but rather is a simple application of 'pari materia', a rule of statutory construction, peculiarly adaptable to a resolution of the question of such asserted error. § 9--1127, supra, in its pertinent parts is as follows, to-wit:

'No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed * * * for any of the following defects: * * *

Sixth.For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged.* * *

Tenth.For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'

But rather, such a holding is in harmony with the modern trend of judicial thinking under similar statutes evidencing as they do an intent to eliminate technical and formal defects which in no way prejudice the defendant or affect his substantial rights.This is a judicial postulate that is necessary to the administration of justice and the elimination of narrow technical formalism in the theory and application of the principles of criminal law.

Appellant's second asserted error is the overruling of his ...