Masuth v. State

120 N.E.2d 272, 233 Ind. 515, 1954 Ind. LEXIS 232

• Court: Indiana Supreme Court
• Decided: June 16, 1954
• Docket: No. 29,081
• Status: Published

Opinions

Flanagan, C. J.

For the background of this case, see Masuth v. State (1952), 231 Ind. 265, 108 N. E. 2d 313.

Upon retrial, the petition for writ of error coram nobis was denied. The evidence was conflicting. We cannot weigh the evidence. Souerdike v. State (1952), 231 Ind. 204, 108 N. E. 2d 136.

Appellant complains that- she was not permitted to amend her petition to conform to the evidence. We have stated that the evidence is in conflict and that we cannot weigh the evidence. Whether or not appellant was permitted to amend her petition makes no difference. And, of course, it is-fundamental that a petition upon appeal will be considered amended to conform to the evidence.

After denying appellant’s motion to amend her petition to conform to the evidence, the court of its own motion set aside the submission and reopened the issues to permit any amendments or new pleadings. No amendments or new pleadings 'were filed. - We are not able to discover whether such action was prejudicial to appellant.

Judgment affirmed.

Bobbitt and Draper, JJ., concur.

Gilkison, J., dissents with opinion in which Emmert, J., concurs.

Note. — Reported in 120 N. E. 2d 272.