Lead Opinion
Certiorari was granted to review the decision of the Court of Criminal Appeals as it pertains to the claim of a variance between the indictment and the evidence. 460 So.2d 232 (1984).
Under the following authorities, the decision on that point was not in error: Helms v. State, 270 Ala. 603, 121 So.2d 106 (1960); Jones v. State, 241 Ala. 337, 2 So.2d 422 (1941); McCoy v. State, 232 Ala. 104, 166 So. 769 (1936); Aaron v. State, 37 Ala. 106 (1861); Perry v. State, 465 So.2d 999 (Ala.Crim.App.1984); Gilbert v. State, 410 So.2d 473 (Ala.Crim.App.1982); Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90 (1952); Armstrong v. State, 24 Ala.App. 334, 134 So. 897 (1931); Messer v. State, 24 Ala.App. 360, 135 So. 415 (1931).
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
Concurrence Opinion
(Concurring specially)-
I agree that the writ must be quashed, but I reach this result only because current criminal procedure does not allow an indictment to be amended. Proposed Rule 13.5, Ala.R.Crim.P. (advisory committee draft, dated June 1, 1977), would have permitted the charge “to be amended, without the defendant’s consent, at any time before verdict or finding if no additional or different offense is charged, and if substantial rights of the defendant are not prejudiced,” but this proposed rule has not been adopted; consequently, I agree with the Court of Criminal Appeals’ determination that there was a fatal variance; therefore, the writ we originally granted is due to be quashed.
JONES, J., concurs.