Lewellen v. State

358 N.E.2d 115 (1976)

David Lee LEWELLEN, Appellant, v. STATE of Indiana, Appellee.

No. 176S4.

Supreme Court of Indiana.

December 16, 1976.

Vernon E. St. John, William M. Bache, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant has filed a Petition for Rehearing contending that we overlooked a point properly raised on appeal, namely that there is a fatal variance between the pleadings, which allege a rape committed in Benton County, and the proof, which showed a rape committed in Warren County. The trial in this case was transferred from Benton County to Warren County, upon motion of the prosecutor, when it was determined that the crime in question was committed in Warren County. It is the contention of the Appellant that the charge *116 against him was never amended to read "Warren" rather than "Benton" County, and that this resulted in a fatal variance between the affidavit charging him and the proof at trial.

It is, in our opinion, implicit under the statute providing for transfer of a case such as here that the charge is accordingly amended as to venue when transfer is ordered. Ind. Code § 35-1.1-2-6 (Burns 1975). If such amendment automatically occurs, there is simply no variance present in this case. Under this analysis, the Appellant's argument is not only without merit, but has been waived. The claimed error was first raised in the Appellant's motion to correct errors. No objection on this ground was made made when transfer was granted, nor did the Appellant's oral motion for directed verdict or his written motion for judgment on the evidence raise the variance issue. Since there is not a total failure of proof of venue, the Appellant has failed to preserve this issue for appeal. Madison v. State (1955), 234 Ind. 517, 130 N.E.2d 35.

When it is assumed that there is a variance in this case, the Appellant's argument fails under traditional analysis. We have said previously that a variance to be fatal or material must be one which misleads the defendant in the preparation of his defense or of such a degree that it is likely to place the defendant in double jeopardy. Majors v. State (1969), 252 Ind. 672, 251 N.E.2d 571; DeBruler v. State (1965), 247 Ind. 1, 210 N.E.2d 666; Roberts v. State (1964), 245 Ind. 185, 197 N.E.2d 304; Madison v. State, supra. The variance in this case, under the particular facts of this case, was not a material one.

The Appellant was in no way misled in the preparation of his defense. The prosecutor stated in his motion to transfer that the crime here had been committed in Warren County. The Appellant was aware of this before his trial. He was bodily transferred to Warren County and knew what the State would seek to prove at trial as to venue.

Nor is there any double jeopardy problem here. When it is said that a variance is material if it places the defendant in danger of double jeopardy, it is meant "that the charge must be sufficiently specific so that in any event after jeopardy has attached, if a second like charge is filed covering the same evidence, events or facts against the accused, the defendant will be protected." Madison v. State, supra, 234 Ind. at 546, 130 N.E.2d at 48. All the "evidence, events or facts" of this case place the rape in question in Warren County. It is difficult to see how a subsequent prosecution in Benton County, the transfer of the case being a matter of court record, could ever occur.

For the reasons stated, the petition for a rehearing is overruled and the judgment of the trial court is affirmed.

All Justices concur.