Denton v. State

203 N.E.2d 539, 246 Ind. 155, 1965 Ind. LEXIS 335

• Court: Indiana Supreme Court
• Decided: January 14, 1965
• Docket: 30,379
• Status: Published

Opinions

Landis, J.

Appellant was convicted, after a jury trial, of the commission of a crime (robbery) while armed with a deadly weapon. He was sentenced to serve a term of ten years in the Indiana State Prison. This appeal followed the overruling of the motion for new trial.

Appellant has first contended the trial court erred, in permitting the introduction into evidence over appellant’s objection, of testimony to the effect that the Bob-Inn Tavern was located at 418 East 22nd Street, Indianapolis, Indiana, whereas the prosecuting attorney’s statement under the alibi statute¹ gave the address as 418 East 26th Street, Indianapolis, Indiana.

As this contention of appellant involves the question of variance, it is necessary to inquire into its materiality, as it is well settled that a variance, in or-der to be fatal, must be of such a substantial nature as to mislead the accused in preparing and maintaining his defense or be of such a degree as is likely to place him in second jeopardy for the same offense. See: Madison v. State (1955), 234 Ind. 517, 542, 130 N. E. 2d 35, 46.

Here it appears the affidavit did not give any address for the said Bob-Inn Tavern other than to allege that the crime in question occurred in Marion County, Indiana. It is therefore evident that the only variance was as to the location of the Bob-Inn Tavern at “418 East 26th Street” in the prosecuting attorney’s statement and “418 East 22nd Street” in the testimony offered by the State.

Applying the above test as to the materiality of the variance, no showing was made by appellant as to how or in what respect he was thereby misled in preparing or maintaining his defense or that he might be placed in double jeopardy as a result thereof. There is no evidence whatever that there was another tavern at the incorrect 26th Street address, nor is there any showing in what respect appellant was allegedly- surprised by the variance between “418 East 22nd Street” and “418 East 26th Street”. No affirmative showing’ being made as to the respect, if any, :in which appellant was prejudiced by the variance in question, and in view of the minor nature thereof, it is our conclusion the same was purely typographical and clerical, and not sufficiently material to cause a reversal of the judgment.

Appellant has also contended the court erred in permitting the State to amend its answer to appellant’s notice of alibi after the case had gone to trial. This question is waived, however, by failure of appellant to present it in his motion for new trial, as Rule 2-6 of this Court requires alleged errors occurring prior to. the filing of such motion, to be raised in such motion where a motion for new trial is appropriate in such proceeding. Such procedure is provided to enable the trial court wherever possible to correct its own error without requiring an aggrieved appellant unnecessarily to resort to the trouble and expense of a needless appeal.

Appellant further contends the court erred in refusing to give appellant’s tendered instruction No. 1 which was as follows:

“You are instructed that if a witness is listed on the indictment or affidavit as a witness for the State and said witness fails to appear and testify without any explanation or evidence as to the reason for his failure to appear, the law presumes that his testimony, if it had been given, would be favorable to the defendant.”

Appellant argues this instruction should have been given as the State of Indiana had endorsed upon the affidavit filed in this ease among the names of its witnesses- the names .of two persons who were not called as witnesses and whose absence was not explained.

The applicable sections of the statute² providing the names of all material witnesses must be indorsed on the indictment or affidavit, further provide other witnesses may thereafter be subpoenaed by the State and that unless the names are so endorsed, no continuance shall be granted to the State on account of the absence of any witness whose name is not thus endorsed.

Appellant would have us construe the statute to provide an additional penalty upon the State for failure to call a witness whose name is endorsed upon the indictment or affidavit. We believe this would amount to judicial legislation by this Court which is a function not properly indulged in by the judicial branch of the government. Art. 3, §1, Constitution of Indiana; Art. 1, §1, Constitution of the U. S.

Numerous authorities of this state have held the only effect of not endorsing the names on the indictment is to prevent the State from obtaining a continuance for such witnesses. Stevens v. State (1959), 240 Ind. 19, 27, 158 N. E. 2d 784, 788; Ruffenbarber v. State (1921), 190 Ind. 616, 618, 131 N. E. 514, 515; Siberry v. State (1893), 133 Ind. 677, 685, 33 N. E. 681, 683; Short v. State (1878), 63 Ind. 376, 383, Cameron v. State (1906), 37 Ind. App. 381, 383, 76 N. E. 1021, 1022. We see no reason why those decisions should be disturbed.

Appellant’s last contention is that the failure of the State to call as a witness one Frank Lotz who signed the affidavit and whose name was endorsed as a witness thereon violates appellant’s rights under Art. 1, §13, of the Constitution of Indiana which provides:

“In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof ; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.”

Appellant has cited in support of his position cases holding the above constitutional provision gives the accused in a criminal case a number of rights among which is a right to meet the witnesses face to face, including the right of cross-examination. We agree with the pronouncements contained in those decisions.

It cannot be questioned that the constitutional provision above cited accords to the accused not only the right of meeting witnesses face to face, but to have compulsory process for securing their attendance in his favor at the trial.

However, we know of no court decision holding it is the duty of the prosecuting attorney, engaged in the prosecution of a person charged with crime, to produce at the trial all the witnesses present at the commission of the crime. The State in fact cannot be compelled to call witnesses at the instance of the accused, but if the accused desires, in the conduct of his defense, the testimony of witnesses who are not called, he has the burden of seeing that they are called. See: Keller v. State (1890), 123 Ind. 110, 112, 23 N. E. 1138; Winsett v. State (1877), 57 Ind. 26, 30.

Had appellant desired for the purposes of his defense, the testimony of Frank Lotz or any other witness not called, he had the burden of seeing such witness was called by compulsory process or otherwise. Having failed to request the attendance of such witness, he has now no cause for complaint, and we have not been shown any respect in which Art. 1, §13, has been violated.

Judgment affirmed.

Arterburn, C. J., and Myers and Achor, JJ., concur.

Jackson, J., dissents with opinion.

1 . Burns’ § 9-1632 (1956 Repl.), Acts 1935, ch. 228, § 2, p. 1198.

“In the defendant’s notice, as provided in the next preceding section, the defendant may also expressly require the prosecuting attorney to file and to serve upon the defendant or upon his counsel a specific statement in regard to the exact date which the prosecution proposes to present at the trial as the date when, and the exact place which the prosecution proposes to present at the trial as the place where, the defendant was alleged to have committed or to have participated in the offense. * * *”

2 . Burns' §~ 9-903. 9-909 (1956 Repl.), Acts 1905, ch. 169, § 112, p. 584, Acts 1905, ch. 169, § 119, p. 584.