The opinion
MR. JUSTICE JOHN C. HARRISON
(dissenting):
*47 I dissent. The Court here reverses a district court for allowing a timely correction of an essentially clerical error in a charging document. The county attorney originally charged the defendant with the offense of aggravated assault specifically enumerating section 94-5-202(1 )(a). That subsection of the offense of aggravated assault has as its aggravating factor serious bodily injury. In the affidavit in support of this charge, it is alleged that:
“The victim, Ann Docksey, advises that she was accosted on the street by a male who attempted to force her into a red car, the assailant told her that he had a knife at her throat, she reached up with her hand and felt a knife, she subsequently escaped and went to the Bozeman Police Department and she has identified David Ottley Brown as her assailant.”
This charge was amended a little more than two weeks after the original charge was filed and more than a month before the trial to allege aggravated assault under section 94-5-202(1 )(c) which had as an aggravating factor the reasonable apprehension of serious bodily injury with a weapon. Looking at the facts alleged in the affidavit, it is obvious that this is the appropriate subsection under which to charge. The majority reverses the district court for allowing this amendment.
The requirements for an amendment as to form are set out in section 95-1505(b). No additional or different offense may be charged and there may be no prejudice to the substantial rights of the defendant.
Here the offense is the same, aggravated assault. Section 94-5-202 begins by saying, “(1) A person commits the offense of aggravated assault * * *” (Emphasis supplied.) and then enumerates the various manners in which aggravated assault may be committed. The amendment did not add another offense, it deleted one subsection and substituted another subsection of the same offense. The first requirement for an amendment as to form is met, there is no new or additional offense charged.
*48 The remaining question is whether the amendment prejudiced the substantial rights of the defendant. The affidavit in support of the original charge set out the fact that a weapon was used and set out facts which give rise to an inference that there was a reasonable apprehension of serious bodily harm. This gave the defendant notice that these facts would be used to support the charge of aggravated assault.
It must be remembered that the basic purposes of the information and the affidavit which supports it are to show that the court has jurisdiction, give notice to the defense of his offense and to protect the defendant against a second prosecution for the same offense. State v. Heiser, 146 Mont. 413 , 407 P.2d 370 . The original affidavit and information fulfilled these requirements.
An examination of two of the cases cited by the majority helps in understanding the boundaries of section 95-1505(b). In State v. Stewart, 161 Mont. 501 , 507 P.2d 1050 , the Court allowed an amendment on these facts. The original charge was first degree burglary which did not have second degree burglary as a lesser included offense and which required that the burglary occur during the nighttime. On the day of trial the charge was amended to burglary which included both first and second degree burglary. This Court upheld the amendment saying:
“The crime charged is the same, i. e., burglary. The elements of the crime are the same. The proof to the crime would remain the same. The only difference between the two charges would be the degree of the crime, which must be determined by the jury. The amendment of the information did not surprise the defendant and did not prohibit him from preparing his defense against the crime.”
This language is equally applicable here. The crime is the same, aggravated assault. The proof, based on the allegations in the affidavit, would be the same. It is clear that a full month’s notice prohibits any claim of surprise or inability to prepare a defense to the charge.
An excellent example of a case where the district court was justified in refusing an amendment is State v. Tropf, 166 *49 Mont. 79 , 530 P.2d 1158 . There the original charge gave the fifth of October as the date on which the crime took place. Defendant gave notice of his defense of alibi and listed his witnesses. The state proceeded to attempt to amend the charge by changing the date of the crime. This Court properly upheld the district court’s refusal to allow such an amendment.
But these are not the facts alleged in the present case. Here the original affidavit clearly alleges facts which support a different subsection of the aggravated assault statute than the one typed on the information. It gave clear notice of the factual basis of the charge. The amendment, a little over two weeks after the original charge and better than a month before trial, gave the defendant adequate notice of the crime and plenty of time to prepare his defense. Unless it is argued that the defendant has a substantial right arising out of clerical errors in the charging document, there was no prejudice to the substantial rights of the defendant.
The basic purposes of both the Code of Criminal Procedure and the Criminal Code are to eliminate the excessively formal code pleading aspects of the previous criminal statutes and to promote justice, secure simplicity in procedure and fairness in administration. This means fairness and justice both to the individual charged and to society. In a case like this one where there is no prejudice to the substantial rights of the defendant, societal, justice requires that it be allowed that this error be corrected. I would affirm the conviction.