OPINION ON MOTION FOR REHEARING
Our prior opinion is withdrawn.
We reverse and remand.
Although many recent opinions have offhandedly dismissed the changing of “and” in the indictment to “or” in the court’s charge, such approach is dangerous and usually fatal in matters where
aggravation
or
jurisdiction
is involved. In the instant cause of
aggravated rape
the indictment
joined
the allegation of threats of death to the standard form allegation of rape by the word
and.
In the court’s charge the aggravation feature was
disjoined
from rape by the word or. Such constitutes fundamental error.
Messenger v. State,
The cause is reversed and remanded to the trial court for further proceedings under this indictment.