Thorne v. State, No. 171S7

Docket NºNo. 171S7
Citation292 N.E.2d 607, 260 Ind. 70
Case DateFebruary 16, 1973
CourtSupreme Court of Indiana

Page 607

292 N.E.2d 607
260 Ind. 70
Richard THORNE, alias Ricky Thorne, Appellant,
v.
STATE of Indiana, Appellee.
No. 171S7.
Supreme Court of Indiana.
Feb. 16, 1973.

Page 608

Phillips B. Johnson, Versailles, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Richard Thorne, appellant (defendant below), from a conviction for possession of dangerous drugs. Appellant was charged by affidavit and was tried by jury which found him guilty. He was sentenced to the Indiana Reformatory for not less than one nor more than ten years. A motion to correct errors, filed September 14, 1970, was overruled and this appeal followed.

[260 Ind. 71] Appellant makes three contentions of error. First, that appellant was charged with possession of 'lysergic acid' which is not defined as a dangerous drug in the statute; secondly, that the State failed to prove that the substance possessed was a dangerous drug; thirdly, that the trial court erred when it gave an instruction concerning the appellant's failure to testify in his own behalf.

Appellant's first argument is that the affidavit charged the appellant with possession of 'lysergic acid which is commonly known as LSD . . .' while the statute in part defines a dangerous drug as:

'any hallucinogenic, psychedelic, psychogenic drug or substance including but not limited to lysergic acid diethylamide, commonly known as LSD.' IC 1971, 16--6--8--2 (Ind.Ann.Stat. § 35--3332 (1969 Repl.)) *

The contention is that the affidavit is defective because the word 'diethylamide' was omitted.

The basis for the appellant's argument is Burk v. State (1971), Ind., 275 N.E.2d 1, where we stated that since LSD had never been defined as a narcotic drug by the Narcotic Drug Act, an affidavit charging use of LSD under the Act would be erroneous. Here appellant contends that the dangerous drug act does not define 'lysergic acid' as a dangerous drug; that the drug defined in IC 1971, 16--6--8--2 (Ind.Ann.Stat. § 35--3332 (1969 Repl.)) is 'lysergic acid diethylamide.' However, both the affidavit and the statute contain the words 'commonly known as LSD.' The affidavit contains substantially the same language as the statute, and we are not here concerned with the Burk situation where the statute made no mention of LSD at all. Defects or imperfections in an affidavit are only grounds for reversal where they prejudice the substantial rights of the...

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15 practice notes
  • Sizemore v. State, No. 1--973A169
    • United States
    • Indiana Court of Appeals of Indiana
    • March 19, 1974
    ...defects or imperfections in the affidavit must have prejudiced the substantial rights of the defendant. Thorne v. State (1973), Ind., 292 N.E.2d 607. The record reveals that appellant was clearly aware of the nature of the crime with which he was being charged. We therefore conclude that th......
  • Gubitz v. State, No. 3--375A38
    • United States
    • March 1, 1977
    ...he was misled. He has thus failed to demonstrate how the alleged imperfection prejudiced his substantial rights. Thorne v. State (1973), 260 Ind. 70, 292 N.E.2d 607; Sizemore v. State (1974), Ind.App., 308 N.E.2d 400 (transfer denied), cert. denied, 420 U.S. 909, 95 S.Ct. 827, 42 L.Ed.2d 83......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • April 2, 1985
    ...A defect in an affidavit is grounds for reversal only where it prejudices the substantial rights of the defendant. Thorne v. State, (1973) 260 Ind. 70, 292 N.E.2d 607; Gubitz v. State, (1977) 172 Ind.App. 343, 354; 360 N.E.2d 259, 267, trans. denied. No reasonable interpretation of the fact......
  • Alvers v. State, No. 1-585A116
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1986
    ...a charging instrument are grounds for reversal only where they prejudice the substantial rights of the defendant. Thorne v. State (1973), 260 Ind. 70, 71, 292 N.E.2d 607, 608. In the present case, the indictment specifically states the acts committed and the nature and elements of those act......
  • Request a trial to view additional results
15 cases
  • Sizemore v. State, No. 1--973A169
    • United States
    • Indiana Court of Appeals of Indiana
    • March 19, 1974
    ...defects or imperfections in the affidavit must have prejudiced the substantial rights of the defendant. Thorne v. State (1973), Ind., 292 N.E.2d 607. The record reveals that appellant was clearly aware of the nature of the crime with which he was being charged. We therefore conclude that th......
  • Gubitz v. State, No. 3--375A38
    • United States
    • March 1, 1977
    ...he was misled. He has thus failed to demonstrate how the alleged imperfection prejudiced his substantial rights. Thorne v. State (1973), 260 Ind. 70, 292 N.E.2d 607; Sizemore v. State (1974), Ind.App., 308 N.E.2d 400 (transfer denied), cert. denied, 420 U.S. 909, 95 S.Ct. 827, 42 L.Ed.2d 83......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • April 2, 1985
    ...A defect in an affidavit is grounds for reversal only where it prejudices the substantial rights of the defendant. Thorne v. State, (1973) 260 Ind. 70, 292 N.E.2d 607; Gubitz v. State, (1977) 172 Ind.App. 343, 354; 360 N.E.2d 259, 267, trans. denied. No reasonable interpretation of the fact......
  • Alvers v. State, No. 1-585A116
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1986
    ...a charging instrument are grounds for reversal only where they prejudice the substantial rights of the defendant. Thorne v. State (1973), 260 Ind. 70, 71, 292 N.E.2d 607, 608. In the present case, the indictment specifically states the acts committed and the nature and elements of those act......
  • Request a trial to view additional results

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