Souerdike v. State
| Decision Date | 17 December 1951 |
| Docket Number | No. 28703,28703 |
| Citation | 102 N.E.2d 367,230 Ind. 192 |
| Parties | SOUERDIKE v. STATE. |
| Court | Indiana Supreme Court |
Paul Haywood, Bloomfield, for appellant.
J. Emmett McManamon, Atty. Gen., George W. Hand, Deputy Atty. Gen., for appellee.
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.
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 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 would be equally available after the amendment is made, and if any evidence the accused might have would be equally applicable to the affidavit in the one form as in the other, then the amendment is one of form and not of substance.'
'Substance' is that which is essential to the making of a valid charge of crime. 1 If the amendment is such that it is not essential to the charging of a crime, then it is not one of substance but one of form.
It is not essential to the charge of driving while under the influence of liquor to name the exact place within the county where the driving was done. Hicks v. State, 1926, 197 Ind. 294, 296, 150 N.E. 759. It then follows that the number 45 as it appeared in the original affidavit was mere surplusage and not essential to the validity of the charge contained in the affidavit. A change in said number from 45 to 445 would not alter its character. It would still be surplusage and not essential to the validity of the charge.
No change was made in the name or identity of the defendant and the crime charged in the amended affidavit is exactly the same as it was in the original. 2 There is no showing in the record that the amended affidavit was based upon facts different from those alleged in the original affidavit or that it would require different evidence to refute it. 3 The defense under the original affidavit was equally available to appellant after the amendment was made and any evidence as to facts constituting the essence of the offense was equally applicable to the affidavit before and after amendment. 4 The change in the affidavit here did not relate to the essence of the offense and did not change the affidavit in any material respect. The amendment was one of form and not of substance. Marshall v. State, 1949, ...
To continue reading
Request your trial
-
Snyder v. State
...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
...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 one of ......
-
Henry v. State
...amendment 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 ......
-
Owens v. State
...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......