Iannaci v. State , 44 Ohio App. 228 ( 1933 )

The attorney for plaintiff in error states in his brief that the change in the indictment was made by the court before the trial commenced. There is no bill of exceptions in the case. The transcript of the docket and journal entries shows that on the 31st day of June, 1932, a jury was impaneled, the plaintiff in error being present with his counsel, that the jury heard part of the testimony, and that the case was continued until the next day. June has only thirty days, and from the fact that the next entry is dated June 1st, I conclude that the 31st day of June should be the 31st day of May.

On June 1, 1932, the transcript shows: "Indictment amended to charge unlawfully, forcibly and against her will." The trial then proceeded. The insertion of the words "unlawfully," and "forcibly," and "against her will," was made in the indictment with a pen. The word "under" was crossed out and above it in typewriting was the word "over." There is nothing in the record to show when the word "over" was written there, but as the attorney for plaintiff in error makes no claim in his brief that that word was written there by the judge, after the indictment was found, and since he doubtless had a copy of the original indictment, my conclusion is that that word "over" was typewritten there at the time the indictment was drafted in the prosecuting attorney's office. The record does not show any objection made by the plaintiff in error when the judge inserted those words with the pen, nor is there any exception taken at the time, as shown by the record. Three days after the trial, a motion in arrest of judgment was filed by defendant below, and in that motion the plaintiff in error claims that he objected and excepted at the time the judge made the change. But that motion in arrest of judgment was never passed upon by the court of common pleas, so far as the record shows, and therefore it is not before this reviewing court. No claim is specifically made in the motion for new trial that the defendant below objected to the change made by the judge, or took any exceptions thereto. Therefore, the entire record before us does not show any objection or any exception to the change made by the common pleas judge.

When the trial judge made the interlineation with the pen, the defendant below had a right to object and, if the objection was overruled, take an exception. He might, at least, have asked for a discharge of the jury and a reasonable continuance of the cause; but he did not do so. Section 13437-29, General Code.

Sections 13437-28 and 13437-29, General Code, are copied almost verbatim from the Michigan law, being combined in one section, known as Section 17290, Michigan Comp. Laws 1929, enacted by the state of Michigan in 1927. The principal change is made by insertion in the Ohio statute, after the word "indictment," the words "information or bill of particulars," and the first sentence in Section 13437-29, General Code, contains the additional words "provided no change is made in the name or identity of the crime charged." The Michigan statute is construed in People v. Spence, 250 Mich. 573, 231 N.W. 126, where the court say: "In prosecution for negligent homicide * * * the trial court properly allowed, before jury was impaneled, amendment of the information setting forth with greater particularity the specific acts relied on." In the opinion the court say: "On the day of the trial and before proceeding to impanel the jury, upon motion of the prosecuting attorney, the circuit judge permitted an amendment of the information by setting forth the negligent homicide charge with greater particularity, in that the amendment set forth the specific acts which the prosecuting attorney claimed constituted the carelessness, recklessness, and negligence with which defendant was charged incident to operating his automobile. Defendant's counsel objected to the proposed amendment on the ground that the information before amendment did not charge any offense and that the accused had not had an examination on the offense charged in the amended information. Defendant did not ask for a postponement or a continuance of the trial, nor did he ask that the case be remanded to the magistrate for further examination. The code of criminal procedure provides: ``The court may at any time before * * * the trial amend the indictment in respect to any defect, imperfection, or omission in form or substance. * * *' Section 76, chap. 7, Act No. 175, Pub. Acts 1927 [Comp Laws Mich. 1929, Section 17290]. As just above noted, the circuit judge allowed the amendment and his ruling was correct."

In the case of City of Cincinnati v. Schill, 125 Ohio St. 57,180 N.E. 545, we find in the opinion these words: "If an accused person feels that the charge filed against him is vague, indefinite and uncertain, and that he is prejudiced thereby, he must not enter his plea, sit smugly through his trial, and complain for the first time by the interposition of a motion in arrest of judgment."

So, in the instant case, if the defendant below felt that he was prejudiced by the change made by the court of common pleas with his pen, he must not sit smugly through the trial and complain for the first time by the interposition of a motion in arrest of judgment, which motion has never been heard by the court below, and ask a reviewing court to reverse the court below. The amendment of the statute, under which the court made the interlineation, was enacted for the purpose of allowing such changes to be made by the common pleas court.

Therefore, in my humble opinion, the judgment of the court below should be affirmed.