Opinion
No. 28,026.
Filed February 14, 1945.
1. INDICTMENT AND AFFIDAVIT — Amendment — Charge Changed From Misdemeanor to Felony — Amendment on Appeal to Circuit Court Improper. — Where defendant was convicted in a city court on an affidavit charging assault and battery, and thereafter he appealed to the circuit court, it was error for the circuit court to permit the affidavit to be amended over defendant's objection so as to charge him with assault and battery with intent to kill, since the amendment changed the crime sought to be charged from a misdemeanor to a felony. p. 141.
2. CRIMINAL LAW — Appeal — City Court to Circuit Court — Further Arraignment and Plea Unnecessary. — Where a prosecution originated before a city court where defendant was arraigned and pleaded to the charge, any further arraignment and plea in the circuit court, to which an appeal was taken after conviction, was unnecessary, and defendant should have been tried upon the affidavit filed in the city court and not upon an amended affidavit filed in the circuit court. p. 141.
3. CRIMINAL LAW — Appeal — City Court to Circuit Court — Procedure for Taking Appeal. — Appeals from city courts are taken in the same manner as provided by law for appeals from justices of the peace. p. 142.
From the Vanderburgh Circuit Court; Nat H. Youngblood, Judge.
Thomas E. Drury was convicted of assault and battery in the circuit court on an affidavit which had been amended, without his consent, to charge assault and battery with intent to kill after he had appealed from a conviction in a city court under an affidavit charging assault and battery only, and he appealed.
Reversed.
Paul Wever and Theodore Lockyear, both of Evansville, for appellant.
James A. Emmert, Attorney General, Frank Hamilton, First Deputy Attorney General, and Forrest P. Jones, Deputy Attorney General, for the State.
An affidavit was filed in The City Court of the City of Evansville charging the appellant with assault and battery. He entered a plea of not guilty and was tried and convicted. He thereupon appealed to the Vanderburgh Circuit Court, which court permitted the filing, without the consent of appellant, of an "amended" affidavit charging the appellant with assault and battery with intent to kill, although the plea entered in the city court had never been withdrawn or in any way vacated or set aside. He was thereupon tried on the "amended" affidavit and was again convicted of assault and battery.
Whether the court below erred in permitting the filing of the "amended" affidavit is the only question presented.
The right to amend an affidavit is conferred by statute. Section 9-1124, Burns' 1942 Replacement, § 2186, Baldwin's 1934, permits the amendment of an affidavit in matter of substance or form at any time before the defendant pleads, while § 9-1133, Burns' 1942 Replacement, § 2132-1, Baldwin's Supp. 1935, 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."
This amendment changed the crime sought to be charged, as the crime charged in said amended affidavit is a felony, while the one charged in the original affidavit is only a 1, 2. misdemeanor, § 9-101, Burns' 1942 Replacement, § 2009, Baldwin's 1934; The State v. Hattabough (1879), 66 Ind. 223. They are separate offenses. Without deciding whether such an amendment could be made under any state of facts over appellant's objection, certainly it was error to allow same after appellant had interposed his plea. An amendment under § 9-1124, Burns' 1942 Replacement, § 2186, Baldwin's 1934, must be made before the defendant pleads. As the prosecution originated before The City Court of the City of Evansville, and as the appellant was there arraigned and pleaded to the affidavit, as affirmatively shown by the record, any further arraignment and plea was unnecessary, and the appellant should have been tried upon said affidavit which was filed before said city court. Eisenman v. The State (1875), 49 Ind. 520; Doench v. State of Indiana (1929), 89 Ind. App. 52, 165 N.E. 777.
Eisenman v. The State, supra, and Doench v. State of Indiana, supra, are cases which deal with appeals from a justice of the peace, but appeals from a city court are taken in 3. the same manner as provided by law for appeals from a justice of the peace. Section 9-721, Burns' 1942 Replacement, § 2090, Baldwin's 1934; § 4-2403, Burns' 1933, § 11588, Baldwin's 1934.
In the case of Malone v. State of Indiana (1913), 179 Ind. 184, 100 N.E. 567, cited in appellee's brief, this court pointed out that "The record is silent and does not show that, at the time the prosecuting attorney was given permission to file an amended affidavit, appellant had pleaded to the charge against him either in the justice's court or the circuit court . . . To sustain appellant's contention, that the court's action was erroneous, it would be necessary for the record to show affirmatively that a plea had been made and not withdrawn prior to the action of the court granting permission to amend the affidavit." As heretofore indicated, the record herein does affirmatively show that appellant had interposed his plea.
Judgment reversed, with instructions that appellant be held to trial on the affidavit on which he was tried in The City Court of the City of Evansville, and other proceedings not inconsistent with this opinion.
Note. — Reported in 59 N.E.2d 116.