174 Wis. 96 | Wis. | 1921
The following opinion was filed March 8, 1921:
By sec. 4576, Stats., providing a penalty for the crime of adultery, it is also provided that no prosecution shall be had unless commenced within one year from the date of the alleged offense.
. Defendant contends that the amendment to the information whereby the commission of the alleged offense was charged to be on August 31st instead of August 24, 1918, in effect amounts to charging him with the commission of a separate and distinct offense than that upon which he had been originally brought into court. That as to the alleged offense of August 31st he had had no preliminary examination, and that such offense not being charged until the time of the trial in March, 1920, and when more than one year had elapsed since such date, the.prosecution therefore was barred by the one-year limitation in sec. 4576, Stats. Pie also contends that such change of date could not be considered as a permissible amendment to the original complaint or inf or ¿nation thereupon and not within the intent or meaning of sec. 4703, which reads as follows:
“Variance disregarded, when. Section 4703. Any court of record in which the trial of an indictment or information is had may forthwith allow amendment in case of variance between the statement in the indictment or information and the proof in the following cases: In the name or description of any person, place or premises, or of any thing, writing or record, or the ownership of any property described in the indictment or information and in all cases where the variance between the indictment or information and the proof are not material to the merits of the case.”
Sec. 4704 gives the court which has permitted an amendment under the preceding section discretionary power to
It being clear at all stages of the proceeding- that but one specific act was relied upon to support the charge against the defendant, we cannot deem the permitted change to be in a matter so material to the merits of the case as to make it beyond the statutory authority given to the court under sec. 4703, supra.
It is true that in an information for such an offense a time should be specifically alleged as that on which such offense was committed. Yet unless some material right of the defendant is affected, as for example when such change might bring the alleged offense within some period of statutory limitation, the prosecution is not formally tied to any such date and may prove the commission of the offense charged on some other, day within a reasonable limitation. Comm. v. Gardner, 7 Gray (73 Mass.) 494.
If, therefore, evidence on the trial might have been properly received as to the changed date upon the original information, it is quite manifest that no prejudice could result in the defendant being thus formally notified before the commencement of the trial of such proposed change.
The situation here presented is similar to that in Robinson v. State, 143 Wis. 205, 208, 126 N. W. 750; Schultz v. State, 135 Wis. 644, 652, 114 N. W. 505, 116 N. W. 259, 571, and cases there cited; and these cases rule this. See, also, 7 A. L. R., note on p. 1531.
There being no attempt to prove or rely upon more than one distinct offense, such cases as Boldt v. State, 72 Wis. 7, 38 N. W. 177, and Fossdahl v. State, 89 Wis. 482, 62 N. W. 185, where, upon informations charging one specific offense upon one specific date, evidence was held to have
We have examined the assignments of error based upon alleged errors in rulings upon the evidence. We find none that merit any detailed discussion and can find no prejudicial error in the trial.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, without costs, on May 3, 1921.
