followed in Pendleton v. State,57 Ala. App. 452, 329 So.2d 140 (1975), cause remanded on other grounds, 295 Ala. 327, 329 So.2d 144 (1976)
How later courts described this case
- followed in Pendleton v. State,57 Ala. App. 452, 329 So.2d 140 (1975), cause remanded on other grounds, 295 Ala. 327, 329 So.2d 144 (1976)
Written by the judges who cited it.
The opinion
ALMON, Judge
(dissenting).
I do not consider this indictment void. It is merely voidable upon demurrer. Our Supreme Court has decided this precise question in Gaines v. State, 146 Ala. 16 , 41 So. 865 . Therefore, I most respectfully dissent.
On Motion for Withdrawal of Opinion
HARRIS, Judge.
This cause was reversed and remanded for a new trial on April 17, 1973. The state did not file an application for rehearing but on May 1, 1973, filed a “Motion For Withdrawal of Opinion, To Set Aside The Judgment of Reversal, To Restore The Cause To The Docket, And To Issue A Writ'of Certiorari”, specifically as follows:
“Comes now the Respondent (sic) in the above styled cause, by and through the Attorney General of Alabama, and respectfully prays this Honorable Court to withdraw the opinion rendered by this Court, to set aside the judgment of reversal, to restore the cause to the docket, and to issue a writ of certiorari directing the Clerk of the Circuit Court of the Tenth Judicial Circuit, the Honorable Julian Swift, to send to this Honorable Court a true and correct copy of the indictment in said cause, showing particularly whether or not said indictment shows the means by which the alleged crime was committed.”
In a Memorandum Brief filed in support of the motion that the opinion of this Court in Nelson’s case be withdrawn, it is stated that an error was made in typing the record of the trial. “This error involved the omission of one line in the indictment.” Further, “the Attorney General’s office has determined that the original indictment was legally sufficient and that *290 the only insufficiency is due to a typographical or clerical error.”
Quoting further from the state’s memorandum :
“The Respondent (Appellee) is fully aware that due process requires that the accused have an intelligent and full understanding of the charge against him. The Respondent (Appellee) is also aware that the indictment, as it appears in the record, is deficient, in that it does not specify the means by which the alleged crime was committed. However, Respondent (Appellee) contends that the actual indictment does point out with sufficient specificity the means by which the alleged crime was committed, to-wit, ‘ ... by beating him with his fists or by means otherwise unknown to the Grand Jury . . . ’
“Thus, it is the Respondent’s (Appellee’s) contention that the indictment was sufficient and that its apparent insufficiency is due merely to a clerical error. The issuance of a Writ of Certiorari by this Honorable Court will operate to bring before the Court a true and correct copy of the indictment. If the indictment does, in fact, show that the quo modo was sufficiently set out, there can be no question that the Petitioner (Appellant) was afforded due process of the law.
“Respondent (Appellee) is aware that there is case law which holds that a Petition For Certiorari which comes after an opinion has been rendered is too late. However, Respondent (Appellee) would contend that, in the instant case, a refusal to issue the writ would operate as a miscarriage of justice. Should a mere clerical error which could be easily corrected carry such force as to require a new trial where the rest of the record is without blemish ? The Respondent (Appellee) earnestly contends that it should not. If an incorrect record seems to show that an accused’s rights have been violated when, in fact, a corrected record would show that they had not, should a new trial result? The respondent (Appellee) would say ‘No.’ ”
To respond favorably to the state’s motion, we would be compelled to overrule Huddleston v. State, 37 Ala.App. 57 , 64 So.2d 90 , and Sashner v. State, 46 Ala.App. 407 , 243 So.2d 390 . This we are not willing to do.
On December 15, 1972, the clerk certified that the record filed by appellant on December 18, 1972, “contains a full, true, correct and complete transcript of the proceedings”, etc. Appellant’s brief was filed on February 23, 1972. The state’s original brief was filed on February 21, 1972, noting that appellant had not filed a brief and stating that a supplemental brief may be filed. The record was submitted on briefs on March 5, 1973. The state filed a supplemental brief on March 9, 1973.
Opinion extended. Petition for certiorari denied.
CATES, P. J., and TYSON and DeCARLO, JJ., concur.
ALMON, J., concurs in denial of petition but adheres to his dissent on original deliverance.