Ridgeway v. Hutto, 72-1637.
Decision Date | 20 February 1973 |
Docket Number | No. 72-1637.,72-1637. |
Citation | 474 F.2d 22 |
Parties | James Hugh RIDGEWAY, Appellant, v. Terrell Don HUTTO, Commissioner of Correction, State of Arkansas, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Kenneth Coffelt, Little Rock, Ark., filed brief for appellant.
Ray Thornton (former Atty. Gen.) and Henry Ginger, Deputy Atty. Gen., Little Rock, Ark., filed brief for appellee.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
The petitioner appeals from the denial of his habeas corpus petition in federal District Court. The facts are not in dispute and have been agreed upon by the parties in a stipulation filed in this Court on November 30, 1972:
The appellant's conviction was affirmed by the Arkansas Supreme Court in Ridgeway v. State, 472 S.W.2d 108 (1971).
The appellant's sole contention on this appeal is that his right to be "informed of the nature and the cause of the accusation" as guaranteed by the Sixth and Fourteenth Amendments was violated at trial due to a fatal variance between the allegations in the information and the proof at trial.
We believe the appellant waived any objection he might otherwise have had because he failed to object to the variance at trial. It is clear that the appellant did not object at trial to the introduction of the variant evidence. See, Jackson v. United States, 123 U.S.App.D.C. 276, 359 F.2d 260, 264 & n.3, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966). Furthermore, even though the appellant did move for a directed verdict at the close of the state's case and at the close of all the evidence, there is no indication that these motions were based on the variant proof submitted by the state so as to preserve this question for appeal. 2 Wright, Federal Practice...
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United States v. Walker
...to request a continuance of trial in order to meet the government's offer of proof. ECF No. 1184 at 69. See Ridgeway v. Hutto, 474 F.2d 22, 24 (8th Cir. 1973) (per curiam) (no fatal variance where "there is no indication that the appellant was surprised by the variant proof and no motion wa......
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...to request a continuance of trial in order to meet the government's offer of proof. ECF No. 1184 at 69. See Ridgeway v. Hutto, 474 F.2d 22, 24 (8th Cir. 1973) (per curiam) (no fatal variance where "there is no indication that the appellant was surprised by the variant proof and no motion wa......
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...violations of due process arising from lack of fair and reasonable notice are cognizable in habeas corpus. See, e. g., Ridgeway v. Hutto, 474 F.2d 22 (8th Cir. 1973); Blake v. Morford, 563 F.2d 248 (6th Cir. 1977), Cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978).13 The tria......
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