State v. Gurney

(dissentii~g).

The essence of the majority holding herein is that the accused was taken by surprise when the state amended the information so as to add thereto an allegation respecting the theft of jewelry, and that he did not have sufficient opportunity to defend against such amendment.

Initially, it should be noted that, according to the record, not only did the district attorney refer in his opening statement to the taking of jewelry but also he introduced much evidence of such fact (without any defense objection whatsoever) during the presentation of the state's case. Therefore, it is…