(DOWNLOAD) "David Lee Lewellen v. State Indiana" by Supreme Court of Indiana No. 176S4 * Book PDF Kindle ePub Free
eBook details
- Title: David Lee Lewellen v. State Indiana
- Author : Supreme Court of Indiana No. 176S4
- Release Date : January 16, 1976
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
On Petition for Rehearing 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 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 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.