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eBook details

• Title: Coates v. State Indiana
• Author : 886 Supreme Court of Indiana No. 30
• Release Date : January 19, 1967
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

Description

This is an appeal from a verdict of guilty on the charge of theft by obtaining control over stolen property under the Offenses Against Property Act, Ind. Anno. Stat. § 10-3030(d), (Supp. 1967) (hereinafter referred to as the Theft Code) and the overruling of the appellant's motion for a new trial. The main contention of error arises from the fact that the affidavit charged theft by obtaining control over property stolen by another under § 10-3030(d), supra, while the proof shows (at the most) that appellant stole the property himself as would be sufficient under § 10-3030(a). This raises a question of construction under the Theft Code. The appellant contends that this presents a failure of proof while the State contends that this is a variance which is not fatal. The problem of characterization is significant due to the different procedural methods by which trial and appeal are effected. Normally a variance must be raised during trial and raised in the motion for a new trial. See Madison v. State (1955), 234 Ind. 517, 547, 130 N.E.2d 35, 49 (Arterburn, J., the majority opinion as to variance), but see Emmert, J., Dissenting as to variance issue and the proper manner for raising it, id. at 538-39, 130 N.E.2d at 45. Furthermore, a failure of proof requires a reversal while a variance is not always fatal. Madison v. State, supra. See also, Note, The Effect of a Variance Between the Pleading and the Proof in Indiana Criminal Procedure, 32 Ind. L.J. 258 (1956).

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