Martin v. State

In his motion for rehearing appellant has strongly challenged the statement in the original opinion that the figures "12" in the second count of the indictment "* * * were evidently a typographical error." He then asserts there is no evidence in the record to sustain the statement.

We have re-examined the record, as it appears in the transcript before us, and we remain of the conclusion that the statement is the only reasonable deduction to be made from it. The first count in the indictment, charging swindling by means of the check, contains a copy of the check in every respect the same as that in the second count except that the date February 13th, in the first count, is copied as February 12th in the second count. The allegations in the first count of the facts which would constitute swindling are in accord with the testimony in the case relating to the second count.

As quoted in the original opinion, the appellant testifying in his own behalf admits that transaction, so far as the question may be raised upon which the appeal is based. The allegations in both counts are to the effect that the offense was committed on February 13th. The check was copied in each as descriptive of the property involved. When we consider the whole record we see no chance for a misunderstanding on the part of appellant as to the offense with which he was charged and, certainly, there is no ground for fear that he could be re-indicted and retried for the same offense.

In discussing Burck v. State, supra, it is said that the alleged variance was not a variance between the allegations in the indictment and the proof offered by the State, but was merely repugnant statements within the indictment. So, in the instant case, the dates alleged in the two counts of the indictment on their face will clearly raise the question as to which of the two is correct. It appears that the party on trial would be put on notice that he was charged with theft of the check for $820.00 given to Mack Martin by Vernon Barclay, "* * * for two Landis machines." Without any proof being offered, it is at once apparent from the indictment that a typographical error was made in the dates. We see no grounds for this misleading the appellant to his damage.

The motion for rehearing is overruled.