The plaintiff in error, Elijah Bryant, was convicted of the crime of murder in the first degree. The jury recommended mercy. Plaintiff in error was sentenced to imprisonment for life.
The indictment in its original form charged that the defendant below "did unlawfully, purposely and while *Page 209 in the perpetration of a robbery, kill Richard Steffy." The evidence showed that the killing occurred while the accused was attempting to commit a robbery and that the actual robbery was never consummated. The court permitted an amendment of the indictment to conform to the proof:
"The Court: The Court finds in this case there is a variance between the allegations in the indictment and the proof, and by virtue of the authority vested in the Court by the Legislature, the Court orders this indictment amended to read, `And while attempting to perpetrate a robbery,' in place of the clause in the indictment, `And while in the perpetration of a robbery.' After that amendment has been made in the indictment the Court will overrule the motion of the defense for an instructed verdict. You may amend your indictment. Let the record show that the Court gives leave to amend it by interlineation."
The court in its general charge to the jury definitely stated that the indictment charged the defendant "killed Richard Steffy while attempting to commit a robbery."
The original indictment does not appear among the papers, but there can be no question that the amendment was allowed and made, as is shown by the charge of the court.
It is urged that permitting such amendment constituted error.
Section 13437-29, General Code, reads as follows:
"The court may at any time before, during or after the trial amend the indictment, information or bill of particulars, in respect to any defect, imperfection or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment be made to the substance of the indictment or information or to cure a variance between the indictment or information, and the proof, the accused shall on his *Page 210 motion be entitled to a discharge of the jury, if a jury has been impaneled, and to a reasonable continuance of the cause, unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. In case a jury shall be discharged from further consideration of a case under this section, the accused shall not be deemed to have been in jeopardy. No action of the court in refusing a continuance or postponement under this section shall be reviewable except after motion to and refusal by the trial court to grant a new trial therefor, and no writ of error or other appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court shall find that the accused was prejudiced in his defense or that a failure of justice resulted."
This section has been held constitutional in the case ofBreinig v. State, 124 Ohio St. 39, 176 N.E. 674.
The first question presented involves the nature of the amendment. Was there any change made in the name or identity of the crime charged? We conclude there was no such change. The crime charged originally and in the indictment as amended was murder in the first degree. Of this crime the defendant was convicted. Even if such were not our conclusion, it is obvious from a reading of the record that the defendant was not misled or prejudiced by the variance in respect to which the amendment was made, nor has any failure of justice resulted.
The judgment and sentence of the trial court are therefore affirmed.
Judgment affirmed.
HAMILTON, P.J., and CUSHING, J., concur. *Page 211