Dissenting Opinion
DeBruler, C. J.The original affidavit in this case charges the commission of robbery and reads in part as follows:
“. . . which property the said JEROME PATSINER [sic] then and there unlawfully held in his possession and was then and there the property of OSCAR’S LOAN OFFICE, INC. . . .” (Emphasis added.)
Just before the start of the trial the State orally moved to amend the affidavit to change “unlawfully” to “lawfully”. The trial court granted the motion over the appellant’s objection. The affidavit was not re-sworn after the amendment.
The majority opinion holds that the amendment was for a defect in form only and under Burns’ Ind. Ann. Stat. §9-1133 could be made at any time without re-swearing. Burns’ § 9-1133, suyra, says:
“The court may at any time before, during or after the trial amend the indictment or affidavit in respect to any defect, *154imperfection or omission in form, provided no change is made in the name or identity of the defendant or defendants or of the crime sought to be charged.”
Even if the amendment be considered as one for a defect of form, the majority opinion ignores the plain language of Burns’ Ind. Stat. Ann. § 9-1124, which says:
“The affidavit may be amended in matter of substance or form at any time before the defendant pleads. When the affidavit is amended it shall he sworn to. No amendment of the affidavit shall cause any delay of the trial, unless for good cause shown.” (Emphasis added.)
This is a clear statutory command that an amendment of an affidavit for a defect of either form or substance must be re-sworn. Burns’ § 9-1133, supra, does not affect that requirement. It does allow amendments for defects of form to be made after the defendant pleads, but it does not change the requirement that any amendment of an affidavit must be sworn to. To the extent that Dixon v. State (1945), 223 Ind. 521, 62 N. E. 2d 629 does not require compliance with that statute I would overrule it.
Jackson, J., concurs.
NOTE.—Reported in 246 N. E. 2d 765.