Krauss v. State, 28614

• Decision Date: 27 September 1951
• Docket Number: No. 28614,28614
• Citation: 229 Ind. 625,100 N.E.2d 824
• Parties: KRAUSS v. STATE.
• Court: Indiana Supreme Court

Page 824

100 N.E.2d 824

229 Ind. 625

KRAUSS v. STATE.

No. 28614

Supreme Court of Indiana.

Sept. 27, 1951

C. Lewis Green, Floyd G. Christian, Ralph H. Waltz, Noblesville, for appellant.

J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Deputy Atty. Gen., for appellee.

JASPER, Judge.

Appellant was charged by indictment with murder in the first degree, under § 10-3401, Burns' 1942 Replacement. He entered a plea of not guilty, was tried by jury, found guilty of murder in the second degree, and sentenced to life imprisonment.

Appellant contends that error was committed by allowing appellee to amend the indictment returned by the Tipton County Grand Jury, and forcing him, over his objection to the amendment, to trial. Appellee was permitted to amend the indictment by inserting the words 'in Madison County, State of Indiana,' following the words 'the said Lora Ida Smith languishing until the 21st day of May, 1943, then and there died.'

The offense for which appellant was tried was before this court in Krauss v. State 1947, 225 Ind. 195, 73 N.E.2d 676, and the identical question now presented was decided by this court adverse to appellant in that case. Judge Young, speaking for the court, said (pages 197, 198 of 225 Ind., pages 676, 677 of 73 N.E.2d):

'It is not necessary to set forth the entire indictment. It is sufficient to say that it was alleged that appellant, on May 20, 1943, in Tipton County, Indiana, unlawfully, feloniously and with premeditated malice killed and murdered one Lora Ida Smith by shooting her, thereby inflicting a mortal wound, 'of which said mortal wound the said Lora Ida Smith, languishing until the 21st day of May, 1943, then and there died in Madison County, State of Indiana.' The amendment complained of consisted of inserting the words italicized above. The amendment occurred after the case had been venued to Hamilton County. Appellant objected to the amendment and moved to strike it out but his objection and motion were overruled by the court. An Indiana statute 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 defendant, or defendants, or of the crime sought to be charged. § 9-1133, Burns' 1942 Replacement. As stated in Edwards v. State, 1942, 220 Ind. 490, 492, 44 N.E.2d 304, 305, '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.'

'In Peats v. State, 1938, 213 Ind. 560, 567, 12 N.E.2d 270, this court indicated that where the matter as to which an indictment is amended is not of the essence of the offense, such amendment does not alter the indictment in any material respect and falls within the statute permitting amendments of indictments. It is provided by statute that where a mortal wound is administered in one county and death therefrom ensues in another the jurisdiction is in either county. § 9-211, Burns' 1942 Replacement. The indictment in this case, both before and after amendment, alleges that appellant shot his victim in Tipton County. That gave Tipton County jurisdiction to prosecute him for murder whether his victim died in that county or another. It would follow, therefore, that the fact that his victim died in Madison County, instead of Tipton County, was not of the essence of the offense and therefore the amendment alleging death in Madison County did not alter the indictment in any material respect. The change did not go to the substance of the charge but only to its form. It did not change the name or identity of the defendant or of the crime sought to be charged. The defendant was not and could not have been harmed and we hold that the court did not err in permitting the amendment.'

This being the law of the case, appellant's contention is therefore without merit.

Appellant further contends that it was error to overrule his motion to quash the amended indictment. The motion to quash alleged that the amended indictment did not state the offense with sufficient certainty. Appellant argues that the amended indictment charged in substance and effect that Lora Ida Smith was shot and died in Tipton County, and also that she died in Madison County. This contention is based upon the following pertinent part of the indictment: 'The Grand Jurors of Tipton County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Tipton in the name and by authority of the State of Indiana, on their oath present that one Russell L. Krauss, late of said County, on the 20th day of May A.D. 1943, at said County and State aforesaid, did then and there unlawfully, feloniously, and with premeditated malice, did kill and murder one Lora Ida Smith, by then and there unlawfully, feloniously, purposely, and with premeditated malice shooting at and against the said Lora Ida Smith, with a certain deadly weapon, called a revolver, then and there loaded with gunpowder and bullets, and thereby inflicted a mortal wound upon the said Lora Ida Smith, of which mortal wound the said Lora Ida Smith languishing until the 21st day of May, 1943, then and there died, in Madison County, State of Indiana.'

The clause 'then and there died, in Madison County, State of Indiana,' must be construed with the preceding clause 'of which mortal wound the said Lora Ida Smith languishing until the 21st day of May, 1943.' The word 'then' refers to the preceding date of 'the 21st day of May, 1943.' The word 'there' refers to 'Madison County, State of Indiana.' The indictment as amended is not gramatically correct. However, upon reading the entire indictment, appellant knew that he was charged with the shooting of Lora Ida Smith in Tipton County, and that she died in Madison County. The amended indictment stated the offense with sufficient certainty, and the motion to quash was properly overruled. Kennedy v. State, 1936, 209 Ind. 287, 293, 196 N.E. 316.

Appellant further contends that the court committed error in admitting in evidence the confession of appellant, and testimony arising out of it, over his objections.

Appellant further contends that the confession was obtained by coercion, through relentless police interrogation, while he was under the exclusive control of the police; that he was not given a hearing before a magistrate during the interrogation; and was without friendly or professional aid or advice; all in violation of the Fourteenth Amendment to the Constitution of the United States. Appellant relies on Watts v. State, 1949, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801.

A careful review of the briefs and the record shows that appellant, prior to the introduction of the confession by appellee, did not request the court for a...