The opinion
ON REHEARING
CATES, Presiding Judge.
In giving his' oral charge to the jury the trial judge read to them the whole of the indictment omitting only the caption and the endorsements. Further, he stated the State must convince them beyond a reasonable doubt of the material averments of the indictment.
The indictment thus read to jury was the proper one, charging robbery of B. J. Waldrip who was proved to be the manager of the Western Super Market.
As the jury filed from courtroom the court addressed counsel for both parties:
“The indictment, here it is. Gentlemen, you check if you will, so that nothing will go back that is not in evidence.”
*315 Ten minutes later, the defendant and counsel being present, the jury through the bailiff advised that it had received the wrong indictment, i.e., one against Stinson for grand larceny of a Pontiac car. The correct one was sent in to the jury.
After the verdict, appellant orally moved to set it aside because of the jury’s having the improper indictment.
While under 51 Ala.R.Civ.Pr., pleadings may not go out, the rule is otherwise in criminal trials.
It is proper for the indictment to go to the jury room with the jury. 23A C.J.S. Criminal Law § 1369, 75 Amjur2d, Trial § 1027.
In Sanders v. State, 131 Ala. 1 , 31 So. 564 , McClellan, C. J., said, “It was necessary that the indictment should be taken by the jury on their retirement * * Apparently, it is adjured in such cases that, upon request, the trial judge direct the jury that the true bill is not evidence. Little v. United States, 10 Cir., 73 F.2d 861 .
In People v. Katz, 356 Ill. 440 , 190 N.E. 913 , the State had nol prossed three of the four counts of the indictment. The court found the defendant was not prejudiced by the jury’s having the whole indictment with them. See also Anno. 120 A.L.R. 463 and ABA Standards for Crim.Justice, Trial by Jury, § 5.1(a).
Apparently the errant indictment here was for stealing the car used to go to and from the Western Super Market. The use of this stolen vehicle inferably to throw pursuers off the trail made evidence of its existence relevant under the general issue framed by Stinson’s plea to the robbery indictment. Hence, we find no prejudicial error in the inadvertent substitution of the wrong indictment. The Katz case, supra, affords an analogous rationale.
We have examined the applications both pro se and of counsel and consider we should extend them.
Opinion extended.
Application overruled.
All the Judges concur.