Souerdike v. State, No. 28703

Docket NºNo. 28703
Citation102 N.E.2d 367, 230 Ind. 192
Case DateDecember 17, 1951
CourtSupreme Court of Indiana

Page 367

102 N.E.2d 367
230 Ind. 192
SOUERDIKE

v.
STATE.
No. 28703.
Supreme Court of Indiana.
Dec. 17, 1951.

[230 Ind. 194] Paul Haywood, Bloomfield, for appellant.

J. Emmett McManamon, Atty. Gen., George W. Hand, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was prosecuted by affidavit under Acts of 1939, ch. 48, § 52(b), being § 47-2001(b), Burns' Revised Statutes, 1940 Replacement. He was tried by the court, found guilty as charged, fined $25 and sentenced to the Indiana State Farm for a period of sixty days. The court also recommended that his driver's license be suspended for a period of 120 days.

The sole assignment of error is the overruling of appellant's motion for a new trial. Three grounds are alleged to support said motion.

Page 368

First: Appellant contends that the court erred in overruling his motion for a continuance.

The affidavit upon which appellant was convicted alleged that appellant, on August 21, 1949, unlawfully drove a motor vehicle along a certain state highway in Greene County, to-wit: 'State highway No. 54 about [230 Ind. 195] 1 1/2 miles west of the junction of state highways No. 54 and No. 45 in said county and state,' while he was under the influence of intoxicating liquor.

After a plea of not guilty and on the day of trial the court permitted the prosecuting attorney to amend the affidavit by interlineation by striking out the figures 45 and substituting the figures 445. Appellant contends that this amendment was improper; that it was an amendment in substance and changed the identity of the crime charged; that the effect of such amendment was to institute a new action against him and force him to go to trial on the same day it was filed, and that as a result of said amendment he was entitled to a continuance for the purpose of preparing his defense.

The granting of a continuance in a criminal case is a matter within the sound discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of this discretion is shown. Connors v. State, 1915, 183 Ind. 618, 109 N.E. 757; Rose v. State, 1941, 219 Ind. 44, 36 N.E.2d 767; Way v. State, 1946, 224 Ind. 280, 66 N.E.2d 608.

The appellant contends that the amendment was one of substance and not of form.

The rule by which it may be determined whether an amendment to an affidavit or indictment is one of substance or form was stated by this court in State ex rel. Kaufman v. Gould, Ind.1951, 98 N.E.2d 184, at page 185, as follows: 'If the defense under the affidavit as it originally stood...

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16 practice notes
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...was prejudiced by the failure to grant the continuance. King v. State (1973), 260 Ind. 422, 296 N.E.2d 113; Souerdike v. State (1951), 230 Ind. 192, 102 N.E.2d 367. Snyder has not set forth in his brief any assertion of how his defense was harmed by the lack of additional time other than a ......
  • Fajardo v. State, No. 32S01-0606-CR-237.
    • United States
    • Indiana Supreme Court of Indiana
    • January 16, 2007
    ...not of substance. Id. at 291, 98 N.E.2d at 185. This definition of "substance" was expanded by another 1951 opinion, Souerdike v. State, 230 Ind. 192, 196, 102 N.E.2d 367, 368 (1951), which added: "If the amendment is such that it is not essential to the charging of a crime, then it is not ......
  • Henry v. State, No. 177S7
    • United States
    • Indiana Supreme Court of Indiana
    • July 21, 1978
    ...all of the same defenses remained available as before. Owens v. State (1975) 263 Ind. 487, 333 N.E.2d 745; Souerdike v. State (1951) 230 Ind. 192, 102 N.E.2d 367. Here the amount of the drug was not an element, but the statute under which appellants were charged distinguishes for sentencing......
  • Owens v. State, No. 874S161
    • United States
    • Indiana Supreme Court of Indiana
    • September 18, 1975
    ...to the affidavit in the one form as in the other, then the amendment is of form and not of substance.' Souerdike v. State (1951), 230 Ind. 192 at 195, 102 N.E.2d 367 at 368 added "Substance' is that which is essential to the making of a valid charge of crime. If the amendment is such that i......
  • Request a trial to view additional results
16 cases
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...was prejudiced by the failure to grant the continuance. King v. State (1973), 260 Ind. 422, 296 N.E.2d 113; Souerdike v. State (1951), 230 Ind. 192, 102 N.E.2d 367. Snyder has not set forth in his brief any assertion of how his defense was harmed by the lack of additional time other than a ......
  • Fajardo v. State, No. 32S01-0606-CR-237.
    • United States
    • Indiana Supreme Court of Indiana
    • January 16, 2007
    ...not of substance. Id. at 291, 98 N.E.2d at 185. This definition of "substance" was expanded by another 1951 opinion, Souerdike v. State, 230 Ind. 192, 196, 102 N.E.2d 367, 368 (1951), which added: "If the amendment is such that it is not essential to the charging of a crime, then it is not ......
  • Henry v. State, No. 177S7
    • United States
    • Indiana Supreme Court of Indiana
    • July 21, 1978
    ...all of the same defenses remained available as before. Owens v. State (1975) 263 Ind. 487, 333 N.E.2d 745; Souerdike v. State (1951) 230 Ind. 192, 102 N.E.2d 367. Here the amount of the drug was not an element, but the statute under which appellants were charged distinguishes for sentencing......
  • Owens v. State, No. 874S161
    • United States
    • Indiana Supreme Court of Indiana
    • September 18, 1975
    ...to the affidavit in the one form as in the other, then the amendment is of form and not of substance.' Souerdike v. State (1951), 230 Ind. 192 at 195, 102 N.E.2d 367 at 368 added "Substance' is that which is essential to the making of a valid charge of crime. If the amendment is such that i......
  • Request a trial to view additional results

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