Hensley v. State
| Decision Date | 12 February 1969 |
| Docket Number | No. 667S12,667S12 |
| Citation | 244 N.E.2d 225,251 Ind. 633 |
| Parties | George HENSLEY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Louis S. Feinn, Chicago, Ill., for appellant.
John J. Dillon, Atty. Gen., James H. Voyles, Deputy Atty. Gen., for appellee.
The appellant was charged in the city court of Michigan City with the offense of driving 'while under the influence of liquor'. He was found guilty and took an appeal to the La Porte Superior Court, Room 1, where he was found guilty and fined $25.00 and costs and his driver's license was suspended for a period of ninety days. Appellant's argument is centered on the wording in the original affidavit filed by the arresting officer. The affidavit charged the appellant with 'Driving under influence of liquor in violation of Section 47- 2001(b) of the State Statute * * *' Appellant contends that the affidavit failed to state a public offense under the Criminal Code by reason of the omission of the word 'intoxicating'.
In the Superior Court the state was permitted to amend the affidavit by adding the word 'intoxicating' liquor therein, using the words of the statute. The appellant refused to plead to the amended affidavit and the trial court entered a plea of not guilty by reason of him standing mute.
'Appeals' from justice of peace courts and city courts to the circuit or superior courts have been recognized as not strictly appeals or a review of the proceedings before the lower courts. They are, in fact, a trial de novo. State v. Schelton (1933), 205 Ind. 416, 186 N.E. 772; Sabo v. State (1926), 197 Ind. 210, 150 N.E. 103; Harlan v. State (1921), 190 Ind. 322, 130 N.E. 43; 22 C.J.S. Criminal Law § 403(1), p. 1084; Burns' Ind.Stat.Anno. § 4-6105.
In Britton v. Fox et al. (1872), 39 Ind. 369, this Court said:
'* * * The appeal from the judgment of the justice of the peace had the effect to vacate the judgment, and brought the case into the circuit court for re-trial, as if it had not been before tried.'
Therefore, when the appellant appealed his conviction from the city court to the superior court, it became a de novo matter for trial. The affidavit could be amended by the state under the general rule that when accused is to be tried de novo, the complaint, affidavit, or warrant used before the justice may be filed in the court to which the appeal is taken without the consent of the justice before whom the original proceedings were had, and at any time before the case is submitted to the jury, and in some cases even after the verdict.
22 C.J.S. Criminal Law § 403(3), pp. 1091-1092.
The state contends an amendment made to the affidavit in the superior court was merely a matter of form and not substance. The statutes of the state permit such amendments. Burns' Ind.Stat.Anno. § 9-1124 states:
'The affidavit may be amended in matter of substance or form at any time before the defendant pleads. * * *'
and Burns' Ind.Stat.Anno. § 9-1133 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.'
In the case before us no change was made in the crime charged nor do we believe the defendant was in any way surprised or placed at a disadvantage when the court permitted the insertion of the word 'intoxicating' in the wording of the charge. The defendant can show no prejudicial error in that respect. This Court has stated:
'The rule as to whether an amendment is as to substance or form can be stated thus: If the defense under the affidavit as it originally stood would be equally available after the amendment is made, and if any evidence the accused might have would be equally applicable to the affidavit in the one form as in the other, then the amendment is one of form and not of substance.' State ex rel. Kaufman v. Gould (1951), 229 Ind. 288, 291, 98 N.E.2d 184, 185; 42 C.J.S. Indictments and Information § 240, p. 1250.
The amendment did not prevent the appellant from using the same defense which he would have used in the original charge. In Malone v. State (1913), 179 Ind. 184, 100 N.E. 567 it was held that in a conviction before a justice of the peace, followed by an appeal to the circuit court, the subsequent filing of an amended affidavit in the circuit court was proper, even though the affidavit was made by the prosecuting attorney instead of the one who originally signed the affidavit.
In the case before us the officer who signed the original affidavit also signed the amended affidavit. In the Malone case it was said:
'* * * The appeal, in fact, is more than a stay of the judgment * * * and transfers the whole proceeding to the court appealed to, there to be tried upon the original affidavit, it is true, unless amended, de novo.'
It appears to us that the amendment was only in form and not in substance and the appellant cannot complain of a second arraignment upon the amended affidavit. In fact, he fails to show in what way he was prejudiced by such subsequent arraignment. He refused to plead thereto, and the court entered a plea of not guilty because of his silence.
It is next contended by the appellant that his constitutional rights were violated by the officer when he was arrested. The evidence shows that the officer, about 4:00 p.m. on August 2, 1966, observed the appellant driving on a U.S. highway. He testified that the appellant's automobile was weaving off the road onto the berm and going back onto the road and going into the inner lane, or what is known as the passing lane. When appellant pulled into a filling station, the officer also pulled into the filling station and asked the appellant for his driver's license and registration card. He smelt the odor of intoxicating liquor upon appellant's breath and asked him if he had been drinking. The appellant said he had had a beer or two. He asked the appellant to get out of the car and walk. The officer testified that he noticed the appellant swaying and staggering at that time, and that he had to help him into the police car. The appellant was taken to the police station and he was asked if he would take a drunkometer test. To this he agreed. The officer who administered the test testified that he once more asked him if he would like to take the test and told him he did not have to take it, and he stated 'yes', he wanted to take it. The officer,...
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