Shaw v. State

• Decision Date: 04 March 1959
• Docket Number: No. 29728,29728
• Citation: 239 Ind. 248,156 N.E.2d 381
• Parties: Harold Lee SHAW, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 381

156 N.E.2d 381

239 Ind. 248

Harold Lee SHAW, Appellant, v. STATE of Indiana, Appellee.

No. 29728.

Supreme Court of Indiana.

March 4, 1959.

Bohannan & Burton, Anderson, for appellant.

Edwin K. Steers, Atty. Gen., Merl M. Wall, Asst. Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was charged with assault and battery with intent to commit a felony, namely, murder, under Section 10-401, Burns' 1956 Repl. He was tried to a jury and found guilty as charged and sentenced to the Indiana State Prison for a period of not less than one nor more than ten years.

Appellant assigns error in the overruling of a motion for a new trial in which he contends that the verdict of the jury is contrary to law and is not sustained by sufficient evidence. Appellant insists that there is a material variance and failure of evidence 'in that the affidavit alleges that appellant attempted to murder Phelps by striking and beating him with his fists and by kicking him with his feet while shod with heavy leather shoes, and the evidence as presented by the State sets forth that appellant struck Phelps with his fists and kicked him, but does not prove by any witness that appellant was shod with heavy leather shoes.' (Our italics.)

The affidavit alleges that the appellant

'did then and there unlawfully and feloniously commit a violent injury upon the person of Arthur Richard Phelps, he, the said Harold Lee Shaw, then and there having the present ability to commit said injury by then and there unlawfully, feloniously, purposely, and with premeditated malice, striking, beating and kicking the person of Arthur Richard Phelps with his fists and his feet while shod with heavy leather shoes * * *.'

We have examined the record and there appears to be no evidence as to the kind of shoes which the appellant wore at the time of the alleged kicking. The evidence, however, is ample to show that the appellant did repeatedly strike and beat Arthur Richard Phelps and also kick him when he was knocked off a stool by the striking and beating.

The question of material variance was examined and reviewed quite exhaustively in the case of Madison v. State, 1955, 234 Ind. 517, 130 N.E.2d 35.

We said in that case, 234 Ind. at page 547, 130 N.E.2d at page 48:

'In other words it seems to be well settled in this state and most jurisdictions that the accepted rule in determining the materiality of a variance in a criminal proceeding is that it must be of such substantial character as to mislead the accused in preparing and maintaining his defense or the variances of such a degree as is likely to place him in second jeopardy for the same offense.'

No claim is made here that the appellant was misled in preparing his defense by the charge that his feet were shod with heavy leather shoes at the time of the alleged kicking; nor is there any risk that he will be placed in jeopardy for this same offense a second time.

It has been held that an allegation in a charge that a gun was used instead of a pistol, a revolving pistol instead of an automatic pistol, a shovel instead of a stone, leaden bullets instead of steel, or TNT instead of nitroglycerin are not fatal variances in criminal...