Winston v. State

470 So. 2d 1333, 1985 Ala. Crim. App. LEXIS 4930

Opinion

TAYLOR, Judge.

In charging Anthony Philander Winston with stealing an electric bug killer from the Village Square Apartments in Russellville, the scrivener for the grand jury made a mistake. In setting out the statute violated, instead of typing “§ 13A-8-4,” the typist typed “§ 13-8-4,” leaving out the capital “A”. Wilson seeks'a reversal of his guilty plea, contending that the indictment is fatally defective for this reason. We have held that a typographical or spelling error is not fatal to an indictment if it is not prejudicial to the rights of the defendant. Clency v. State, 415 So.2d 714 (Ala.Cr.App.1982). It is also the law that a code section is not an essential element of the statement of the offense in an indictment. Griffin v. State, 428 So.2d 213 (Ala.Cr.App.1973). Our code, Code of Alabama 1975, § 15-8-4, says that for an indictment to be fatally defective, any error therein must be prejudicial to the substantial rights of the defendant. Rule 15.2(b), A.R. Crim.P.Temp., does require that the indictment state the official or customary citation of the statute which the defendant is alleged to have violated. Our interpretation is that this rule does not change the law as set forth in Clency and Griffin and in Code of Alabama 1975, § 15-8-4.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.