State v. Gates

220 P.2d 115, 118 Utah 117, 1950 Utah LEXIS 147

• Court: Utah Supreme Court
• Decided: June 27, 1950
• Docket: No. 7421
• Status: Published

Opinions

PRATT, Chief Justice.

The appellant was charged with the offense of carnal knowledge and unlawfully knowing a female over the age of 13 years and under the age of 18 years. He complains about certain amendments in the complaint that was filed before the committing magistrate — a city judge in this case.

The complaint shows on its face these amendments: “ * * * on/or about (8th) 16th day of July A. D. 1949. * * * ”

The “or about” and the diagonal line are in typewriting; the “8th” is scratched out with ink, and the “16th” inserted in longhand with ink. The complaint was sworn to by one Elizabeth Mills. The transcript of the record before the committing magistrate shows this entry: “Court ordered complaint amended by interlineation.” It also shows that Elizabeth Mills was sworn and testified before the magistrate at the preliminary hearing.

The evidence in the case shows a commission of such an offense the night of July 15th. Defendant was represented by counsel .throughout the proceeding to and including conviction in the District Court. The record is'silent as to any objection by him as to this alleged error, until the present appeal, where he is represented by a counsel who did not participate in the preliminary hearing and the trial below. See Section 105 — 16—2 U. C. A. 1943 and Annotations. The record does not show when the amendments were made nor upon what they were founded; but, absent some showing to the contrary, this court must presume that amendments were regularly made. In fact, as Elizabeth Mills — apparently the signer of the complaint —was sworn and testified at the preliminary hearing, it is not unlikely that the amendments were made to conform to her testimony. She testified under oath. The amendments conform to the facts to which she testified at the trial. It is not hard to believe that the complaint was amended to conform to similar testimony by her at the preliminary hearing. Thus it can be very reasonably assumed that the amendments were made according to her oath at the preliminary hearing.

Appellant complains that the complaint was amended without court authority. We see no merit to this contention. The fact that the amendment included several words written partly in typing and partly in longhand indicates nothing that Would overcome the presumption of regularity in conformity with the minute entry. We have set out above the probable way the amendments occurred.

Appellant complains that it charged a different crime. A different crime, we assume, from one committed on the 8th, if one were committed on that day, but it does not appear that appellant was, in any way, led to believe he was being tried for an offense on the 8th. For aught that appears in the record, he was given a preliminary hearing upon a crime alleged to have been committed on or about the 16th and it is obvious, from that record that he was, without any objection from him, tried for the offense at that time. He has made no contention otherwise. This is not a case of charging an offense on the 8th and convicting of an offense committed on the 16th — the principle covered by the case of State v. Nelson, 52 Utah 617, 176 P. 860.

Appellant’s last point to the effect that the complaint should be reverified after amendment, is covered by our statement above. The complaining witness was sworn and testified at the. preliminary hearing and presumably the complaint was amended there to conform to that sworn testimony.

In closing, we wish to say that we do not believe the date of the alleged offense is material in this case. State v. Sheffield, 45 Utah 426, 146 P. 306, Section 105—11—1, U. C. A. 1943, 105 — 21—12 U. C. A. 1943, and State v. Cox, 106 Utah 253, 147 P. 2d 858.

Judgment of the lower court is affirmed.

WADE and McDONOUGH, JJ., concur.