Way v. State

• Decision Date: 21 May 1946
• Docket Number: 28160.
• Citation: 66 N.E.2d 608,224 Ind. 280
• Parties: WAY v. STATE.
• Court: Indiana Supreme Court

66 N.E.2d 608

224 Ind. 280

WAY v. STATE.

No. 28160.

Supreme Court of Indiana

May 21, 1946

Paul Haywood, of Bloomfield, for appellant.

James A. Emmert, Atty. Gen., and Frank F. Coughlin, 1st Asst. Atty Gen., for appellee.

GILKISON Judge.

On April 14, 1945the appellant was charged with an assault and battery with intent to commit manslaughter.On April 23 1945, he waived a formal arraignment and entered his plea of 'not guilty', and the cause was assigned for trial on May 24, 1945.Later on the same day the trial of the cause was continued until the next term of court, by agreement of the parties.On September 3, 1945, by agreement of the parties the cause was assigned for trial on October 1, 1945.

On October 1, 1945, Paul Haywood, an attorney for the defendant filed his verified motion for a continuance of the trial alleging among other things that on May 23, 1945he inspected the records and files in the case in preparing for the trial.That he made another inspection on October 1, 1945 and discovered that the affidavit had been changed by interlineation, since his former inspection.That because of such change he is unable to go to trial on said affidavit 'as it now appears'.That such amendment was without the knowledge or consent of the appellant or any of his counsel.

Thereafter, on the same date the prosecuting attorney asked leave to file an amended affidavit, which the court permitted, and then overruled appellant's motion for continuance.Appellant then asked for time in which to plead to the amended affidavit to which the state objected.The court gave appellant until 1:30 p. m. of the same day, in which to enter his plea.A motion to quash the amended affidavit was overruled.An oral motion by appellant for a continuance 'to enable the defendant and his counsel to prepare for a defense of this cause of action * * * and that if the defendant is compelled to go to trial at this time his defense * * * will be prejudiced thereby' was overruled by the court.

Appellant was then tried by jury, resulting in a finding of guilty, fine of $200 and ninety days in the Daviess County jail.

By motion for new trial and proper assignment of errors appellant presents the following alleged errors for our determination:

(1) Overruling the motion to quash the amended affidavit.

(2) Requiring appellant to answer certain questions on his cross-examination.

(3) The form of the verdict.

(4) Permitting the state to amend the affidavit after plea.

(5) Denying a continuance when an amended affidavit was filed on the day of trial.

The amended affidavit is as follows, omitting caption, signature and verification: 'W. L. Johnson, being duly sworn on his oath, states: that at and in the county of Daviess and state of Indiana on the 11th day of April, 1945, Earl Way did then and there, in a rude, insolent and angry manner unlawfully and feloniously, purposely without malice, expressed or implied, in a sudden heat, strike, beat, bruise, and break the bones of one Lois Butts with his fists and feet, with intent then and there and thereby her, the said Lois Butts unlawfully felioniously, purposely without malice, expressed or implied, in a sudden heat, to kill, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Indiana.'

Appellant contends that the court should have sustained the motion to quash the amended affidavit because it is uncertain whether it charges an intent to commit voluntary or involuntary manslaughter.We do not think it is vulnerable to this objection.While it does not charge that the acts were done 'voluntarily' agreeable with the statute, § 10-3405, Burns' 1942 Replacement, it does charge that they were done 'purposely'.We think this is sufficient.The facts alleged are in no sense agreeable with the definition of involuntary manslaughter.They are agreeable with the definition of voluntary manslaughter.The motion to quash was properly overruled.

Appellant complains that over his objection, he was required to answer on his cross-examination, that theretofore he had been convicted of 'speeding' and also of 'disorderly conduct'.It is a well-recognized rule of law that any fact tending to impair the credibility of a party or witness by showing his interest, bias, ignorance, motives or that he is depraved in character, may be shown on cross-examination.The extent of such cross-examination is for the sound discretion of the trial court.While the evidence on this subject in this case may be slight in probative value, we can not say error was committed in admitting it.Smith v. State,1937, 212 Ind. 605, 610, 10 N.E.2d 899;Dotterer v. State,1909, 172 Ind. 357, 360, 362, 88 N.E. 689, 30 L.R.A.,N.S., 846;Shears v. State,1896, 147 Ind. 51, 55, 46 N.E. 331;Vancleave v. State,1898, 150 Ind. 273, 275, 276, 49 N.E. 1060.For the same reason the motion to strike out this evidence was properly overruled.

The verdict is assailed as being contrary to law.It finds the defendant guilty of assault and battery, fixes his fine at $200, and that he be imprisoned in the county jail for ninety days.Appellant complains that the verdict does not designate the imprisonment as punishment as provided by statute, § 9-1819, Burns' 1942 Replacement.We do not think it essential that the verdict should so designate the imprisonment.It is obvious that such imprisonment is punishment, whether so designated or not.We think the form of the verdict is sufficient.

In the matter of amending an affidavit by which a defendant is attempted to be charged with a criminal offense, § 9-1124, Burns' 1942 Replacement, provides: 'The affidavit may be amended in matter of substance or form at any time before the defendant pleads.When the affidavit is amended, it shall be sworn to.No amendment of the affidavit shall cause any delay of the trial, unless for good cause shown.'

Under this statute our court has consistently approved the amendment of affidavits in substance or form, prior to plea.State v. Simpson,1906, 166 Ind. 211, 214, 76 N.E. 544, 76 N.E. 1005;Barrett v. State,1911, 175 Ind. 112, 114, 93 N.E. 543;State v. Anderson,1912, 177 Ind. 437, 439, 98 N.E. 289;Malone v. State,1913, 179 Ind. 184, 186, 100 N.E. 567;Drury v. State,1945, 223 Ind. 140, 59 N.E.2d 116.However, we find no case in Indiana approving an amendment in substance after a plea has been entered.

It has been held that, if the record is silent as to plea, and the court allows an amended affidavit to the filed, it will be presumed in favor of the ruling, that no plea had been entered at the time the amended affidavit was filed.Malone v. State,supra, 179 Ind. 186, 187, 100 N.E. 567;State v. Anderson,supra, 177 Ind. 439, 98 N.E. 289.The statute authorizing the amendment of the charge in substance or form at any time before the defendant pleads, naturally prohibits such amendment after the defendant pleads, agreeable with the doctrine 'expressio unius est exclusio alterius.'

In the instant case the record affirmatively shows that the appellant had entered his plea long prior to the filing of the amended affidavit.This court has recently held that an amended affidavit changing the substance of the offense may not be filed after plea.SeeDrury v. State, supra.

However, it is contended by appellee that the amendment can be made under § 9-1133, Burns' 1942 Replacement which provides: '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.'(Our italics.)

In the instant casethe amendment was made by the prosecuting attorney with the approval of the court.If the amendment thus made was for the purpose of correcting a defect, imperfection or omission in form only, and it made no change in the name of the defendant or in the substance of the crime sought to be charged, it was permissible under this section of the statute.Dwigans v. State,1944, 222 Ind. 434, 436, 54 N.E.2d 100;Edwards v. State,1942, 220 Ind. 490, 44 N.E.2d 304;Peats v. State,1938, 213 Ind. 560, 567, 12 N.E.2d 270.

To ascertain whether the amendment corrected a defect imperfection or omission in form, or whether it changed the name of the defendant, or affected the substance of the crime sought to be charged, we must, of necessity, compare the amended affidavit with the original.However, the original affidavit is not in the record.Appellant has presented a record containing a statement as follows: 'The clerk of this court is unable to furnish a copy of the original affidavit, for the reason that it was lost in the court room during the trial of this cause.'Neither appellant or appellee has made any effort to have this defect in the record corrected.This could have been done by bringing up a copy of the original affidavit from the clerk's record.§ 9-909, Burns' 1942 Replacement, provides as follows: 'When such affidavit has been made, as provided in the...