Citation Numbers: 184 N.E. 843, 44 Ohio App. 228, 13 Ohio Law. Abs. 541
Judges: LEMERT, J.
Filed Date: 1/27/1933
Status: Precedential
Modified Date: 1/13/2023
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 *Page 236 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,
In the case of City of Cincinnati v. Schill,
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. *Page 238