Kolb v. State

Decision Date15 May 1972
Docket NumberNo. 571S145,571S145
Citation282 N.E.2d 541,258 Ind. 469
PartiesFred KOLB, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

James G. McDonald, Jr., and Charles R. Nixon, McDonald, McDonald & Nixon, Princeton, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

Appellant Fred Kolb was charged by affidavit with the offense of 'Possession and Control of Narcotics With Intent to Give Them To Another Person.' Appellant waived arraignment and entered a plea of not guilty. Three days later, a second affidavit was filed charging Kolb with 'Furnshing Alcoholic Beverages To A Minor.' On this second affidavit Kolb was arraigned and entered a plea of not gulty. The two offenses were consolidated for trial.

The case was brought to trial on November 19, 1970, at which time appellee made an oral motion to amend the affidavit on the alcoholic beverage charge. The motion was sustained by the court. Prior to the amendment, the affidavit charged that appellant did 'furnish an alcoholic beverage, to wit: beer, to a person under the age of nineteen (19) years. . . .' The amendment changed the word and figure 'nineteen (19)' to 'twenty-one (21).' Appellant then moved for a continuance which was denied by the court.

The case proceeded to trial by jury. An oral confession by Kolb on the alcoholic beverage charge was determined by the judge to have been voluntary and was admitted into evidence.

The jury returned guilty verdicts on each charge, but did not fill in the blanks on the verdict form for assessment of punishment on the alcoholic beverage misdemeanor charge. Judgment was issued on the verdicts for the separate charges. The judgment on the felony narcotics charge is as follows:

'IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the defendant be, and he hereby is, sentenced to the Indiana State Prison for not less than five (5) years nor more than twenty (20) years and that he be fined in the sum of Five Hundred Dollars ($500.00) and pay the costs taxed in this action.'

The judgment on the alcoholic beverage charge is as follows:

'IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED by the Court that the defendant is guilty of furnishing an alcoholic beverage to a minor but that no punishment be assessed.'

The appellant raises a total of twenty-one issues in the Statement of Issues portion of his brief. However, two of the original 21 issues are waived in the argument portion of his brief. Additionally, some of the issues raised involve the same legal considerations and are consolidated in this opinion.

Appellant's first assignment of error involves appellee's motion to allow the State to amend its affidavit by substituting the words and figure 'twenty-one (21)' in place of 'nineteen (19).' The appellant argues that such an amendment is an amendment in substance rather than form, and is not to be allowed after the defendant has entered a plea in a criminal case.

IC 1971, 35--1--23--26, Ind.Ann.Stat. § 9--1127 (1956 Repl.), provides in pertinent part, that:

'No indictment or affidavit shall be deemed invalid . . . 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.'

The statute under which appellant was charged, IC 1971, 7--2--1--9, Ind.Ann.Stat. § 12--438 (1971 Supp.) defined the offense of furnishing alcoholic beverage to any person under twenty-one (21) years of age. The affidavit as to this charge originally stated the offense charged as follows:

'William R. Bennett, being duly sworn, on oath says that Fred Kolb on or about the 17th day of September, A.D., 1970 at the County of Gibson, in the State of Indiana, did then and there unlawfully furnish an alcoholic beverage, to-wit: Beer, to a person under the age of nineteen (19) years, to-wit: Betty Gunter, age nineteen (19), contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

The affidavit in this case, both before and after the amendment, alleged the crime to be that Kolb unlawfully furnished beer to one Betty Gunter, age nineteen. That statement was ample to inform appellant of the charge he would have to meet, so that the amendment was not contradictory and did not change the offense. The change was of form rather than substance. Appellant does not point out that he was surprised or prejudiced by the amendment.

Appellant's next allegation is that the court erred in not declaring a mistrial when, during voir dire, the Court admonished appellant's counsel for arguing to the jury at an improper time. The appellant contends that such an amendment prejudiced appellant's counsel in the minds of the jurors and all other prospective jurors.

The appellee correctly points out in this regard that without a transcript of these matters, there is no way that a determination can be made whether the trial court erred and what was said or argued. Current Indiana cases hold that failure to present such an adequate record waives any error. Nix v. State (1960), 240 Ind. 392, 166 N.E.2d 326; Torrence v. State (1971), Ind., 266 N.E.2d 1; Burns v. State (1970), Ind., 260 N.E.2d 559. We, therefore, are unable to find any merit in this allegation.

Appellant's next assignment of error alleges that the court erred in overruling defendant's motion for a continuance made after the State was permitted to amend its affidavit upon oral motion. There were no grounds for continuance otherwise, since the evidence showed she was 19 years old. All facts alleged were true. The affidavit was merely more particular than necessary. As noted above, the amendment in the affidavit was one of form, not substance. Therefore, appellant's request for a continuance was properly refused. IC 1971, 35--1--23--7, Ind.Ann.Stat. § 9--1124 (1956 Repl.), reads in pertinent part, as follows:

'No amendment of the affidavit shall cause any delay of the trial, unless for good cause shown.'

The amendment being proper, no delay should be allowed without a showing of good cause. Appellant has made no such showing. In addition, in Way v. State (1946), 224 Ind. 280, 66 N.E.2d 608, we find the following statement:

'There is no showing in the record that the amended affidavit filed on the date of trial was different in substance from the original, that it was based on other or different facts, that it would require other or different evidence to refute it, or that defendant would need other or additional witnesses than were required if the trial had been on the original affidavit. In such a situation we must presume that the trial court properly exercised its discretionary powers. Its ruling will be presumed to be in accordance with the justice and merits of the case. We can not presume that it has abused its discretionary powers, or that appellant's rights have been injuriously affected. Roberts v. State, supra, 188 Ind. (713) at page 716, 124 N.E. 750; Detro v. State, supra, 4 Ind. (200) at page 202; Neal v. State, (1938), 214 Ind. 328, 332, 333, 14 N.E.2d 590, 15 N.E.2d 950.'

Appellant made no showing of abuse of discretion on the part of the trial court.

The next assignment of error alleges that the trial court erred in permitting the State of Indiana to proceed to trial upon the amended affidavit following a substantive change. We have already decided that the change in the affidavit was one of form not substance, and, therefore, the trial court was correct.

The next issue raised by appellant questions the propriety of the trial court's action of refusing to let one Betty Gunter answer a question put to her on cross-examination by the defense. The question at issue, as found in the transcript, is the following:

'Q You mean that bartender's certificate doesn't say that I swear that I am at least twenty-one years of age?

OBJECTION to that question as to what it says. It would be the best evidence to have it here itself.

BY THE COURT: I think that's objectionable. Objection sustained.

The appellant claims that this question was asked for the purpose of testing her credibility since Miss Gunter was under age and could not legally possess a bartender's license. The objection was sustained on the basis of the best evidence rule which was proper. As to the impeachment of the witness, the witness clearly admitted her age was 19 at the time she signed the certificate. This fact was heard by the jury. Therefore, the purpose of the original question had been achieved already and the appellant can show no prejudice.

The appellant next alleges that it was error for the court to allow the witness, Betty Gunter, to answer a question propounded to her upon re-direct. The testimony in question and the objection to it are as follows:

'Q. 19 Now, Mr. McDonald asked if you were afraid. Did you get any telephone calls yesterday?

A. Yes, I did. Not yesterday, day before.

A. 20 What were those telephone calls?


I object to the telephone calls, Your Honor, for this reason. Unless it is specifically shown by Mr. Marshall--Now, this is only done to interject into this case an inuendo that somebody threatened this woman and I object on the grounds that it is prejudicial to the interests of my client and is asked solely for the purpose of prejudicing the jury against my client unless it can be affirmatively demonstrated to this court the person making the telephone call.


Your Honor. I think Mr. McDonald would ordinarily be right but he asked the question on cross-examination whether she was afraid of anybody, he has opened the door, I think we have a right to walk in and find out if there is anything else to cause her to be afraid.

BY MR....

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