Johnson v. State
| Decision Date | 25 April 1972 |
| Docket Number | No. 770S150,770S150 |
| Citation | 281 N.E.2d 473,258 Ind. 383 |
| Parties | Mike JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., for appellee.
Defendant (Appellant) was convicted of robbery in a trial by jury under Acts of 1941, ch. 148, § 6, 1956 Repl. Burns Ind.Stat.Ann. § 10--4101, IC 35--13--4--6. He was sentenced to imprisonment for not less than ten nor more than twenty-five years and disfranchised for five years. His Motion to Correct Errors assigns grounds 1 through 11. Alleged errors 5, 7 and 9 have been waived under Appellate Rule 8.3(A)(7).
Alleged errors 1, 2, 3, 4 and 8 are treated together in Appellant's brief and relate to the overruling of his motion to quash the affidavit and the sustaining of the State's motion, at the close of its evidence, permitting it to amend the date of the jurat upon the charging affidavit.
The charging affidavit was as follows:
'HERMAN C. HAYES being duly sworn upon his oath says that MIKE JOHNSON on or about the 29th day of October A.D., 1969, at said County and State as affiant verily believes did then and there unlawfully, feloniously and forcibly and by violence and putting DONNA MASON in fear, rob, take and steal from the person of the said DONNA MASON Three Hundred Dollars ($300.00) in lawful and current money of the United States of America, then and there belonging to PAUL ROY, doing business as ROY'S MARKET, a sole proprietorship.
Then and there being contrary to the form of the Statute, in such cases made and provided and against the peace and dignity of the State of Indiana.
/s/ Herman C. Hayes
Subscribed and sworn to before me, the undersigned Clerk of the Vanderburgh Circuit Court this 5th day of October, 1969.
/s/ Joseph F. O'Day
Clerk of the Vanderburgh Circuit Court
/s/ Per Margueritte Harding
Deputy'
The reverse side of the affidavit shows it to have been filed on December 5, 1969.
The motion to quash and supporting memo was as follows:
'MOTION TO QUASH
The defendant moves the Court to quash Count II of the affidavit herein on the following grounds:
1. The facts stated in said affidavit do not constitute a public offense.
2. Said affidavit does not state the offense charged with sufficient certainty.
/s/ John G. Bunner
Attorney for Defendant
MEMORANDUMCount II of the Affidavit does not state a public offense and does not state the offense with sufficient certainty for the reason that it does not allege the correct time or date and that any defense made by the defendant to the charge herein would be prejudiced by said failure.
/s/ John G. Bunner
Attorney for Defendant
I hereby certify that I have personally served a copy of the above and foregoing Motion upon the Prosecuting Attorney for the State of Indiana this 2nd day of February, 1970.
/s/ John G. Bunner'
The evidence disclosed that the robbery with which the defendant was charged took place on October 29, 1969. The affiant testified that he signed the affidavit on December 5, 1969, in open court and that it was then filed on that same date. The court's file mark disclosed the filing date to be December 5, 1969. (Transcript pp. 122--124). We note that the appellant's brief reflects that the affiant testified that he signed the affidavit on October 5, 1969 and we assess this as a typographical error.
It is the defendant's position that since the affidavit alleged the date of offense subsequent in time to the date of the affidavit, it did not state a public offense and that permitting its amendment to make it good would necessarily be a change in substance, rather than in form, and prejudicial error. He relies upon Pagotis v. State (1938), 214 Ind. 697, 17 N.E.2d 830; Hunt v. State (1927), 199 Ind. 550, 159 N.E. 149; and Shonfield v. State (1925), 196 Ind. 579, 149 N.E. 53. We find these cases distinguishable upon the facts and his contention without merit. In Pagotis (supra) the affidavit was returned on September 18, 1936 and charged an offense to have been committed on December 15, 1936. The amendment changed the alleged commission date to December 15, 1934. The date of the alleged commission of the offense charged is usually an essential part of the allegation, and when it is, it is, therefore, by its very nature substantive. The date of the jurat is a formality only.
As in Pagotis (supra), Shonfield (supra) involved an affidavit filed prior to the date of the alleged offense. The affidavit in Hunt (supra) alleged that the offense occurred on two different dates, i.e. '* * * on or about the 27th day of Oct., A.D. nineteen hundred 1923 * * *.'
The motion to quash did not direct the court's attention to the discrepancy between the date of the jurat and the date of the alleged offense. If it had, it could very easily have been corrected at that time. The alleged date of the offense was definite and anterior to the date of filing; hence the defendant could not have been misled or prejudiced in the preparation of his defense. The subsequent amendment of the jurat appears to have been irregular, since it was predicated upon the testimony of the affiant rather than upon that of the attesting official. However, it is clear the defendant could not have been prejudiced.
The governing statutes have not been offended and provide:
'Immaterial defects.--No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding, be stayed, arrested or in any manner affected for any of the following defects:
Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'
'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.'
It has been held that 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 one form as in the other, the amendment is one of form and not of substance. Smith v. State (1969), 252 Ind. 148, 246 N.E.2d 765; State ex rel. Kaufman v. Gould (1951), 229 Ind. 288, 98 N.E.2d 184. Also see, 42 C.J.S. Indictments and Informations § 240, p. 1250.
Alleged error number 6 relates to the court's having permitted a State's witness to testify, over objection, that she had previously identified the defendant at a line-up. Prior to such testimony, a hearing was held outside the view and hearing of the jury, at which it was determined that the defendant had counsel present at the line-up and that it was properly conducted in all respects and that the witness had there identified the defendant without suggestion from any of the others present.
In Jacoby v. State (1932), 203 Ind. 321, 180 N.E. 179, cited by the defendant, the witness was allowed to testify that two weeks following the robbery, when he went to the police station with the officer, he saw the appellant come up the steps, that he then turned to the officer and told him that there was the man who had robbed him. In Thompson v. State (1944), 223 Ind. 39, 58 N.E.2d 112, also cited by Defendant, police officers were permitted to testify that on the morning following the alleged crime the prosecuting witness had viewed the appellant through a 'one way' glass and had then identified him as the man who had robbed her. In both cases we reversed. It would be difficult, if not impossible, to draw any relevant distinctions between these two cases and the one at bar. However, having re-examined them, together with other like cases and the writings of eminent authorities in the field of criminal evidence, we have concluded that they should not be followed. Other jurisdictions appear to be about evenly divided upon the question of the competency of testimony by a witness, as to his own prior identification of the defendant. The trend, however, appears to be favoring its admissibility, and other states that once refused it as hearsay, now admit it under proper circumstances.
Wigmore on Evidence, Third Edition, § 1130, is unyielding in favor of its admissibility.
act of pointing out the accused (or other person), then and there in the court-room, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person's identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him.
The psychology of the situation is practically the same as when Recent Contrivance is alleged. To corroborate the witness, therefore, it is entirely proper (on the principle of § 1129, ante) to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness' mind, he recognized and declared the present accused to be the person. If, moreover (as sometimes is done) the person was then so placed among others that all probability of suggestion (by seeing him handcuffed, for example) is still further removed, the evidence becomes stronger. The typical illustration is that of the identification of an accused person at the time of arrest: * *...
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Merry v. State
...(Our emphasis.) The test to determine whether the amendment is one of form or substance was set out in Johnson v. State (1972), 258 Ind. 383, 387, 281 N.E.2d 473, 476, where it was '(I)t has been held that if the defense under the affidavit as it originally stood would be equally available ......
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Dean v. State
... ... We followed such a rule in Thompson v. State, (1944) 223 Ind. 39, 43, 58 N.E.2d 112, 113 and overruled Thompson in Johnson v. State, (1972) 258 Ind. 383, 281 N.E.2d 473, 476. The facts of Johnson which involved the victim's relating the pretrial identification procedure, were not the same as in Thompson, and our unnecessarily broad comments might be reconsidered upon presentation of a proper record. But see Lottie v ... ...
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Boles v. State
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