Summary
In Breinig v. State, 124 Ohio St. 39, 176 N.E. 674, this court permitted the amendment of an indictment by the trial court by inserting the venue, when the accused was not prejudiced thereby.
Summary of this case from Harris v. StateOpinion
No. 22750
Decided June 10, 1931.
Criminal law — Amending indictment by inserting venue — Section 13437-29, General Code — Constitutional law.
Section 13437-29, General Code (113 O. L., 123, 169), pertaining to amendments of indictments, is not violative of any of the provisions of our Constitution. That section authorizes the trial court to amend an indictment by inserting therein the venue or county where the alleged offense was committed, if no venue was therein stated; provided the accused is not prejudiced thereby.
ERROR to the Court of Appeals of Scioto county.
Plaintiff in error, David A. Breinig, will be referred to herein as defendant below. The defendant was convicted and sentenced in the court of common pleas of Scioto county, Ohio, for the crime of embezzlement, upon an indictment captioned: "The State of Ohio, Scioto county, SS." The indictment charged that the defendant, "Being an officer and employee of the state of Ohio, to wit, superintendent of maintenance and repair of state highways for Scioto county, appointed in pursuance of law to said office of public trust in this state * * * did unlawfully and fraudulently embezzle and convert to his own use certain money belonging to the state of Ohio, * * * the property of the said state of Ohio, without the assent of said state of Ohio and without the assent of any owner of said money; which said money had then and there come into the possession and care of him the said David A. Breinig, by virtue and under color of his said office and while he, the said David A. Breinig, was in the same continuous employment as said superintendent of maintenance and repair of state highways for Scioto county as aforesaid."
It will be observed that the venue or county in which the offense was committed was not contained in the indictment. Upon the second day of the trial counsel for the defendant objected to further evidence being offered in the and moved the court to direct the jury to bring in a verdict of not guilty because of lack of jurisdiction to try the defendant, and for the special reason "that there is no allegation in this indictment that any part of this transaction took place in Scioto county, Ohio." The trial court overruled this motion and permitted the prosecuting attorney to amend the indictment by interlineation therein of the words "at the county of Scioto aforesaid" immediately preceding the words "being an officer aforesaid." Counsel for the defendant excepted to the ruling of the court.
The Court of Appeal affirmed the conviction of the defendant in the trial court, and a constitutional question being involved, petition in error was filed as of right in this court.
Messrs. Blair Ball and Mr. A.R. Johnson, for plaintiff in error. Mr. Gilbert Bettman, attorney general, Mr. J.A. Godown and Mr. Cameron Meacham, prosecuting attorney, for defendant in error.
The main contention presented by counsel in argument, and regarded by the Court of Appeals as the chief question in the case, is: Did the trial court commit error in permitting the indictment to be amended so as to show the venue or county in which the offense was committed?
The defect in the original indictment was challenged by the defendant's counsel in various forms and at various stages of the trial. Under our present Code of Criminal Procedure an accused may be prosecuted for embezzlement either in the county in which it occurred or in the county in which he was required to account to his employer. Section 13426-11, General Code. Since the original indictment did not show upon its face that the offense was committed at a place within the jurisdiction of the court (Section 13437-2, paragraph 4, General Code) counsel challenged the jurisdiction of the court to proceed, and likewise challenged the sufficiency of the indictment because it did not allege in what county the offense was committed.
It is argued that the present sections of the Criminal Code, especially Section 13437-29, should not be so interpreted as to permit an indictment to be amended to show the venue or county in which the offense occurred; that such an amendment affects a matter of substance and is not comprehended within the language employed in the section last named; and it is further urged that, if the court should so interpret the statute as to permit such amendment, a statute so interpreted and applied by the trial court would violate certain provisions of the Ohio Constitution, notably Section 10, Article I, providing that no person shall be held to answer for an infamous crime unless upon the presentment of an indictment, and providing for a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.
The section under attack in the present case is Section 13437-29, General Code, authorizing amendments to indictments before, during or after trial. Quoting its salient parts, that section reads: "The court may at any time before, during or after the trial amend the indictment, * * * in respect to any defect, imperfection or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged."
Section 13449-5, embodied in the same Code of Criminal Procedure, is of the same import. It provides in substance that no motion for a new trial shall be granted or verdict set aside or conviction reversed in any court in case of imperfection in the indictment "provided that the charge be sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him." It then provides that no judgment of conviction can be reversed "for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial."
We agree that if the court should amend an indictment in such a manner as to change the name, character or identity of the offense, such an amendment permitted by the court could not cure the indictment, as such action would violate the provisions of the local and fundamental laws, cloaking the offender with the right to "demand the nature and cause of the accusation against him." Section 10, Article I of the Constitution. Any amendment in respect to that feature of the indictment would prejudice the substantial rights of the defendant. But Section 13437-29, General Code, pertaining to amendments, safeguards to the accused this right in providing that if the defect or omission be one in form or substance it may be amended "provided no change is made in the name or identity of the crime charged." In this case no claim can be made that the defendant was misled or prejudiced by the action of the trial court in permitting the county where the offense had been committed to be inserted in the indictment; nor can it be claimed that the defendant did not know from the proof adduced that the state was relying on the county of Scioto as the county in which the offense was committed. All the sections referred to were embodied in the new Code of Criminal Procedure and enacted by the Legislature at the same time. (113 Ohio Laws, 123 et seq.) Undoubtedly by their enactment the legislative purpose was to make criminal proceedings less antiquated, to eliminate technicalities, to reject our former more dilatory forms of procedure, and to adopt a more modern system providing a speedier trial for an accused without impinging upon his just and constitutional rights.
This is evidenced in Section 13437-7. After providing that an indictment shall not be invalid for various omissions therein, that section further provides that "an indictment * * * shall not be invalid * * * for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits."
We are therefore constrained to hold that Section 13437-29, General Code (113 Ohio Laws, 169), should be so construed as to authorize the trial court to permit an amendment to an indictment by inserting therein the county wherein the offense was committed; and we further hold that, since the accused was neither misled nor prejudiced by the defect in the indictment or in his defense, his constitutional rights were not violated by the court in permitting such amendment. Many of the states have adopted statutes permitting amendment of venue in indictments. The Constitution requires that an indictment must be presented by the grand jury; that it must advise the accused of the nature and cause of the accusation against him. Both of these provisions were complied with. The specific clause of the Constitution providing for the trial of the accused in the county where the offense was committed was also eventually complied with since he had a trial in such county. When the state so acts, courts have generally held that such statutes do not violate constitutional provisions such as we have in our own state. Counsel on both sides have cited numerous authorities in support of their respective claims; but those cases are not helpful except where they discuss the right of amending the venue in indictments when authority for so doing has been granted by the state law. Some, but not all, of these cases are referred to in Welty v. Ward, 164 Ind. 457, 73 N.E. 889, 3 Ann. Cas., 556.
A handwriting expert appeared as a witness for the state. In response to one question in chief he gave a lengthy version of the manner in which he arrived at the conclusion that certain writings were made by the defendant. One of his answers covers eight pages of printed record. Being opinion evidence, and based upon a large number of exhibits, there was reason for his lengthy explanation. The principal objection the defense advances is that the witness testified that some of the exhibits indicated "beyond a reasonable doubt" that they were in the handwriting of the defendant. The objection made by the defense was a general one. The court's attention was not called to the use of the foregoing phrase by the witness, nor to any specific portion of the answer which was claimed to be objectionable. What counsel for the defendant did was to move "to strike the answer out, each and every part, separately and severally." There was no error in overruling the motion couched in that form. Timberman v. State, 107 Ohio St. 261, 140 N.E. 753. Other claimed errors are assigned by counsel, among them errors alleged to have been committed in the court's charge. However, we find no prejudicial error in respect thereto.
The case was permitted to enter this court chiefly for the purpose of deciding whether Section 13437-29, General Code, authorized the amendment of an indictment by inserting therein the county where the offense was committed, when no venue (county) appeared in the indictment, and, secondarily, for the purpose of determining whether that section, as we have interpreted it, is constitutionally valid. Employing the language used in that section, if the accused was not "misled or prejudiced by the defect * * * in respect to which the amendment is made," the court had authority to permit the defect to be amended. While the method of its use by an abuse of discretion may prove to be prejudicial and erroneous, the statute itself is constitutionally valid.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., MATTHIAS, DAY and KINKADE, JJ., concur.
ALLEN, J., not participating.