State ex rel. Kaufman v. Gould, 28760
| Decision Date | 17 April 1951 |
| Docket Number | No. 28760,28760 |
| Parties | STATE ex rel. KAUFMAN v. GOULD. |
| Court | Indiana Supreme Court |
Lorin H. Kiely, W. D. Hardy, James H. Meyer, all of Evansville, for relator.
Edward Crabtree, F. M. Condit, Bernard A. Frick, all of Evansville, for respondent.
This is an original action by the relator against Hon. Phillip C. Gould, as Special Judge of the Vanderburgh Circuit Court, for a writ of prohibition, prohibiting the respondent from exercising jurisdiction in a cause of action entitled State of Indiana v. Sheldon S. Kaufman et al., numbered 4548, in the Vanderburgh Circuit Court, and to mandate the respondent to expunge certain orders made by him as Special Judge. A temporary writ of prohibition issued.
On February 18, 1950, the relator was charged by affidavit, in the Vanderburgh Circuit Court, with the crime of robbery while armed, under § 10-4709, Burns' 1942 Replacement. On February 27, 1950, an amended affidavit, charging the same offense, was filed. On March 9, 1950, the relator waived arraignment on the amended affidavit and entered a plea of not guilty to the charge and was later released on bond. On May 22, 1950, the respondent qualified as Special Judge. The relator was tried by jury, and, on January 9, 1951, the jury, being unable to agree, was discharged. On February 16, 1951, the Prosecuting Attorney, by leave of court, and over the objection of the relator, filed a second amended affidavit, charging armed robbery, but changing the name of the owner of the stolen property from Interstate Loan Company to Interstate Loan Corporation. The relator filed written objections to the respondent exercising further jurisdiction in the cause, contending that the second amended affidavit charged a separate, distinct, and different offense from that charged in the first amended affidavit, and must be filed with the regular judge. The relator was ordered to appear at a future date for arraignment on the charge set forth in the second amended affidavit. The relator failed to appear as ordered for the reason that he was in the custody of federal authorities. The respondent ordered the forfeiture of his bond.
The sole question presented is whether the second amended affiadvit filed in the cause charged the relator with a new, separate, distinct, and different offense by changing the name of the owner of the stolen property from Interstate Loan Company to Interstate Loan Corporation. If it is a new offense, then the respondent, as Special Judge, has no jurisdiction over the subject matter of the action and over the person of the relator. The statutes of this state contain two provisions for the amendment of affidavits.
Section 9-1124, Burns' 1942 Replacement, reads as follows: 'The affidavit may be amended in matter of substance or form at any time before the defendant pleads. * * *'
Section 9-1133, Burns' 1942 Replacement, reads as follows: 'The court may at any time before, during or after the trial amend the indictment or affidavit in respect to any defect, imperfection or omission in form, provided no change is made in the name or identity of the defendant or defendants or of the crime sought to be charged.'
This court has held in numerous cases that, after a defendant pleads to a criminal charge, the state cannot amend the affidavit as to matter of substance. Rogers v. State, 1948, 226 Ind....
To continue reading
Request your trial
-
Madison v. State, 29188
...of substance after a defendant has pleaded thereto. Gullett v. State, 1953, 233 Ind. 6, 116 N.E.2d 234; State ex rel. Kaufman v. Gould, 1951, 229 Ind. 288, 291, 98 N.E.2d 184; Rogers v. State, 1948, 226 Ind. 539, 82 N.E.2d 89; Way v. State, 1946, 224 Ind. 280, 66 N.E.2d 608. Since the state......
-
Merry v. State
...other, the amendment is one of form and not of substance. Smith v. State (1969), 252 Ind. 148, 246 N.E.2d 765; State ex rel. Kaufman v. Gould (1951), 229 Ind. 288, 98 N.E.2d 184. Also see, 42 C.J.S. Indictments and Informations § 240, p. 1250.' The amendment to the information deleting the ......
-
Fajardo v. State
...to matters of form, the former historically prohibited after the defendant had entered a plea. See, e.g., State ex rel Kaufman v. Gould, 229 Ind. 288, 290-91, 98 N.E.2d 184, 185 (1951). To determine whether an amendment related to a matter of substance or form, the rule applied If a defense......
-
Owens v. State
...of curing a failure to charge or state a crime or legal insufficiency of the factual allegations.' In State ex rel. Kaufman v. Gould (1951), 229 Ind. 288 at 291, 98 N.E.2d 184 at 185, this court 'The rule as to whether an amendment is as to substance or form can be stated thus. If the defen......