People v. Leneschmidt

245 N.W. 544 | Mich. | 1932

Complaint for bastardy alleged that the child was begotten on or about the 9th day of May, 1930, the occasion and circumstances being definitely stated. The proofs placed the time in the forepart of April, without change of the occasion and circumstances. Defendant claims fatal variance as to dates.

Conviction must be confined to the act charged in the complaint. Showing of other acts of intercourse is permitted only as bearing on the probability of commission of the one relied on. People v. Schilling, 110 Mich. 412. When the date is alleged with particularity, it must be proved as laid (Hull v.People, 41 Mich. 167; People v. Wilson, 136 Mich. 298), but amendment may be permitted (People v. Cole, 113 Mich. 83). But where the date is not alleged with particularity, variance in the time is not fatal, if the verdict is confined to the particular act within the scope of complaint upon which the prosecution introduces evidence for the purpose of procuring conviction. People v. Swanson, 217 Mich. 103; 7 C. J. p. 987.

In this case there was testimony of two acts of intercourse. The court carefully confined conviction to the one charged. Defendant was apprised by the examination that complainant was uncertain of the date, but the occasion was made clear. The defense was an alibi, and defendant's evidence covered the time relied upon as fully as it did the date named in the complaint. No motion was made for continuance after the court ruled that the act could be shown as of the forepart of April, nor does the record indicate that defendant was deprived of a fair trial nor injured in his defense by the variance.

The other points raised have been examined, are without merit, and need no discussion.

Judgment affirmed.

CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred.