Quillen v. State
| Citation | 271 Ind. 251,391 N.E.2d 817 |
| Decision Date | 19 July 1979 |
| Docket Number | No. 878S156,878S156 |
| Parties | Billie B. QUILLEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
John R. Cromer, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted, in a second trial of armed robbery, Ind.Code § 35-12-1-1 (Burns 1975), following a jury trial, a former trial having resulted in a mis-trial because the jury had been unable to agree upon a verdict.
He was sentenced to thirteen (13) years imprisonment.
By this direct appeal, Defendant has urged three issues, two of which are essentially the same and challenge the sufficiency of the evidence. One of such issues challenges the propriety of allowing an amendment to be made to the charging affidavit, after the close of the State's case, and it is his position that without such amendment, the evidence would be insufficient. His authorities here cited in support of his position upon the issue of the amendment are cited out of context, however, and do not support his position. There is a simpler approach to the issue of the sufficiency of the evidence, however, and our resolution of that issue, hereinafter stated, against the defendant's position, renders the amendment issue moot.
May a conviction stand upon evidence that the offense was committed upon the date fixed by alibi notice, which date is not otherwise of the essence of the crime, and is at a variance from the date alleged in the information?
The information alleged that the crime charged occurred on December 4, 1976. However, through pre-trial alibi procedures, it had been established that the correct date was December 5th. The date of December 5th was provided by the State in response to the alibi notice, however, the information was never properly amended.
At the first trial, when the aforesaid error was discovered, the State moved to amend the date, and the motion was granted. The document, however, was not altered to conform to such action.
At the second trial with which we are here concerned, the information, i. e. the document, continued to reflect the incorrect date and was read to the jury as part of the preliminary instructions. Nevertheless, all of the State's evidence disclosed that the crime occurred on December 5th and all of the alibi evidence related to the defendant's whereabouts on December 5th.
Defendant acknowledges the following general rule stated in Stallings v. State, (1953) 232 Ind. 646, 114 N.E.2d 771:
" * * * The law is well settled in Indiana that where time is not of the essence of the offense, the State is not confined to proving the commission on the date alleged in the affidavit or indictment but may prove the commission at any time within the statutory period of limitations."
It is his position, however, that the alibi statute having been invoked, time became of the essence, citing Aikens v. State, (1972) 154 Ind.App. 36, 289 N.E.2d 152, and that he, therefore, could not be convicted of a crime alleged to have been committed upon the 4th upon evidence of a crime committed upon the 5th.
In furtherance of his position, Defendant contends that the amendment to the information that had occurred by motion during his first trial was inoperative at the second trial, citing authorities for the proposition that a mis-trial vitiates all proceedings as if there had been no trial.
Assuming, arguendo, that at his second trial, the defendant stood charged with having committed the crime on December 4th, he is, nevertheless, in error in his position that he could not be convicted upon evidence that he committed a crime on December 5th. Again, his authority, Aikens v. State, supra, is cited out of context and, in fact, is supportive of our decision herein.
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...the declaration of his alibi notice. The objection, however, was properly overruled. Defendant's reliance on Quillen v. State, (1979) 271 Ind. 251, 253, 391 N.E.2d 817, 819 and Dew v. State, (1981) Ind., 416 N.E.2d 1245, is misplaced. In Quillen, an answer to the alibi notice was filed spec......
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...there is a variance between the allegations in a charging information and the evidence presented at trial. See Quillen v. State, 271 Ind. 251, 253, 391 N.E.2d 817, 819 (1979) (noting that “a variance, in order to be fatal, must be of such substantial nature as to mislead the accused in prep......
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