State ex rel. Tucker v. Elkhart Superior Court, 0-651

• Decision Date: 08 September 1964
• Docket Number: No. 0-651,0-651
• Citation: 245 Ind. 683,201 N.E.2d 40
• Parties: STATE ex rel. Clarence R. TUCKER, Petitioner, v. ELKHART SUPERIOR COURT and Hon. Frank j. Treckelo, Judge, Respondent.
• Court: Indiana Supreme Court

Page 40

201 N.E.2d 40

245 Ind. 683

STATE ex rel. Clarence R. TUCKER, Petitioner, v. ELKHART SUPERIOR COURT and Hon. Frank j. Treckelo, Judge,

Respondent.

No. 0-651.

Supreme Court of Indiana.

Sept. 8, 1964.

Rehearing Denied Oct. 15, 1964.

Clarence R. Tucker, pro se.

Edwin K. Steers, Atty. Gen., for appellee.

LANDIS, Justice.

Relator on April 16, 1962, filed in this Court petition for writ of mandate asking that respondent court be commanded to sustain relator's praecipe for transcript and motion for appointment of counsel in an attempted appeal from the denial of what appears to be in substance a petition for writ of error coram nobis. ¹ On May 16, 1962, we denied relator's petition for writ of mandate for failure to comply with Rule 2-35 of this Court.

Relator thereafter filed petition for writ of certiorari in the U. S. Supreme Court, 372 U.S. 712, 83 S.Ct. 1020, 10 L.Ed.2d 126, which subsequently vacated the judgment denying the writ and remanded the cause for further consideration in the light of Lane v. Brown (1963), 372 U.S. 477, 83 S.Ct. 768, 769, 9 L.Ed.2d 892.

In considering the merits of relator's petition for writ of mandate it appears the substance of relator's contention is that the lower court erroneously denied his coram nobis petition which had asserted the lower court erred in permitting the State to amend the affidavit filed against him and that the affidavit was defective in certain other respects. The State filed demurrer to the coram nobis petition setting up that relator was represented by counsel at his trial by jury for safe burglary and that relator and his counsel consented to the amendment to the affidavit.

Relator has attached as an exhibit to his petition a letter to him from the public defender of Indiana, viz.:

'In reply to your letter of September 9, 1961, and correspondence received since said date, together with a copy of a petition for a writ of error coram nobis which I presume you have filed in the Superior Court of Elkhart County, will advise that after giving this matter proper consideration and reviewing the law applicable to the matter set forth in your petition, I find that, in my opinion, your petition is wholly without merit.

'You complain because the affidavit filed against you was amended during the trial of your cause. Undoubtedly this amendment was made pursuant to Sec. 9-1133 of Burns' Indiana Statutes which 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 statute permits an amendment at such time as to form only, providing no change is made in the name or identity of the defendant or the crime sought to be charged. Changing the name of the owner of the property was purely a technical matter and could in no way prejudice your substantial rights, however, the Supreme Court on October 17, 1961 in the case of Dobson v. State, 242 Ind. 267, 177 N.E. (2d) 395, held that such matters as you complain about should have been corrected by proper objections during the trial and by a motion for a new trial and if denied, by an appeal and not by coram nobis, a copy of said opinion is enclosed herewith for your consideration.

'In view of the above stated facts my office will not represent you in this matter.

'Yours truly,

ROBERT S. BAKER,

Public Defender

'Enc.

'cc: Warden, Indiana State Prison

Box 41

Michigan City, Indiana.'

The defect here attempted to be cured by amendments did not in any way affect relator's substantial rights but was purely technical in nature as it sought solely to change the spelling of the name of the owner of the property burglarized from 'Dr. Melvin Totor' to 'Dr. Melvin Teeters.' The trial court in our judgment had full authority under the foregoing statute (Burns' Sec. 9-1133, 1956 Repl., Acts 1935, ch. 189, Sec. 1, p. 928) to permit the amendment to be made as it obviously did not concern the name or identity of the defendant nor the crime sought to be charged.

However, in any event, any question as to the propriety of such amendment or any defects in the language of the affidavit were cured by the failure of the defendant or his counsel to make timely objection during his trial for...