Pagotis v. State, 27055.

• Decision Date: 19 December 1938
• Docket Number: No. 27055.,27055.
• Parties: PAGOTIS v. STATE.
• Court: Indiana Supreme Court

214 Ind. 697

17 N.E.2d 830

PAGOTIS

v.STATE.

No. 27055.

Supreme Court of Indiana.

Dec. 19, 1938.

James Pagotis was convicted of conspiracy to rob a bank, and he appeals.

Reversed with directions.Appeal from Superior Court, St. Joseph County; J. Elmer Peak, judge.

Floyd O. Jellison, of South Bend, and Oscar Thiel, of Gary, for appellant.

Omer Stokes Jackson, Atty. Gen., and Patrick J. Smith, Deputy Atty. Gen., for the State.

SHAKE, Judge.

Appellant was prosecuted upon an indictment in three counts. The first count charged him with being as accussory before the fact to the robbery of a bank; the second and third counts were for conspiring with others to rob the bank and the employees thereof. All three counts involved the same parties and related to the robbery of the same bank. The indictment was returned on September 18, 1936. The first and third counts charged the commission of the offenses therein described as of December 15, 1934; the second count charged the crime to have been committed on a date subsequent to the return of the indictment, to-wit, December 15, 1936.

At the conclusion of the evidence and before the jury was instructed, the prosecuting attorney asked leave of court to amend the second count by changing the date of the commission of the alleged offense from 1936 to 1934. Leave was granted over objection and the amendment was made accordingly. The appellant saved the question by motion to quash, made prior to the amendment; a motion for a new trial; and a motion in arrest of judgment. There was a judgment of guilty on the second (amended) count, and this appeal followed.

It has long been the recognized law of this jurisdiction that an indictment which charges a crime to have been committedsubsequent to the return thereof does not state a public offense and is bad against a motion to quash. State v. Noland, 1867, 29 Ind. 212, 214;State v. Sammons, 1884, 95 Ind. 22, 28;Murphy v. State, 1886, 106 Ind. 96, 98, 5 N.E. 767,55 Am.St.Rep. 722;State v. McDonald, 1886, 106 Ind. 233, 238, 6 N.E. 607;Trout v. State, 1886, 107 Ind. 578, 8 N.E. 618;State v. Patterson, 1887, 116 Ind. 45, 10 N.E. 289,18 N.E. 270;Terrell v. State, 1905, 165 Ind. 443, 451, 75 N.E. 884, 2 L.R.A.,N.S., 251, 112 Am.St.Rep. 244,6 Ann.Cas. 851;Boos v. State, 1914, 181 Ind. 562, 565, 105 N.E. 117;Shonfield v. State, 1925, 196 Ind. 579, 149 N.E. 53;Hunt v. State, 1927, 199 Ind. 550, 159 N.E. 149. The Attorney General concedes this rule and admits that the overruling of the appellant's motion to quash the second count of the indictment was error. He claims, however, that this error was cured by subsequent proceedings in the cause. He relies upon the provisions of section 1, chapter 189, Acts of 1935 (§ 9-1133, Burns' Ann.St.1933 (Pocket Supp.), which 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’.

It will be noted that the act of 1935, quoted above, is limited in its application to defects, imperfections and omissions in form. The question is therefore presented as to whether ...