10 N.E.2d 786 | Ohio Ct. App. | 1936
Paul Foster, appellant, was indicted by a grand jury of Scioto county. The first count of the indictment charged that at the time and place specified the defendant unlawfully operated a certain truck upon a street in a village of the county in a state of intoxication. The other count charged the defendant at the time and place with operating a certain truck while under the influence of alcohol. The defendant demurred to the indictment on the ground that it did not state facts sufficient to constitute an offense under the laws of Ohio. This demurrer was overruled by the trial court. Upon motion of the prosecuting attorney and over the objection of the defendant the indictment was amended by the interlineation of the word "motor" before the word "truck" in each count of the indictment. A jury was waived and the case was tried to *268 the court which found the defendant guilty as charged. Motions in arrest of judgment and for a new trial were filed by the defendant and overruled by the court. The defendant thereupon appealed to this court upon questions of law.
The indictment was drawn under favor of Section 12628-1, General Code, which provides:
"Whoever operates a motor vehicle of any kind upon any public highway or street while in a state of intoxication, or under the influence of alcohol, * * * shall be punished," etc.
Under the authority of Section 13437-29, General Code, the trial court had full authority to permit the amendment to the indictment. A similar situation was before this court in the case of Breinig v. State, affirmed by the Supreme Court in
The record presents no prejudicial error and the judgment is affirmed.
Judgment affirmed.
MIDDLETON, P.J., and McCURDY, J., concur. *269