Dailey v. State

16 Citing cases

  1. Ex Parte Collins

    385 So. 2d 1005 (Ala. 1980)   Cited 66 times
    In Collins, supra, our Supreme Court reversed the judgment of this Court in Collins v. State, 385 So.2d 993, 998 (Ala.Cr.App. 1979), where we relied on the principle that "if an indictment contains an unnecessary averment, nonetheless it becomes necessary for the state to prove it...."

    However, our Alabama case law is clear that there must be a material variance between indictment and proof before a conviction will be overturned for that reason. See e.g., House v. State, 380 So.2d 940 (Ala. 1979) (no material variance between indictment which charged defendant with assaulting Edward Wilburn, engaged "in the active discharge of his lawful duty or duties as deputy sheriff for Morgan County, Alabama" and proof which showed that Wilburn was in fact engaged in his lawful duties as a jailer at the time of the assault), and Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979) (no material variance between forgery indictment, in which number of check was described as "1881," and proof that check was numbered "1886"). Since there was no material variance between the indictment and proof in the case at bar, there was no manifest necessity for dismissing the proceedings.

  2. Fitch v. State

    851 So. 2d 103 (Ala. Crim. App. 2001)   Cited 15 times
    Holding that the failure to give the defendant’s requested jury instructions was harmless error

    "`A variance between the indictment and the proof is immaterial when the alleged variance may be treated as surplusage.'" Irby v. State, 615 So.2d 1262, 1264 (Ala.Crim.App. 1992) (quoting Dailey v. State, 374 So.2d 414, 417 (Ala.Crim.App. 1979)). Moreover, there was no variance between the charge in the indictment and the proof presented at trial.

  3. Little v. State

    676 So. 2d 959 (Ala. Crim. App. 1996)   Cited 6 times

    Appellate review is limited to matters that are properly raised in the trial court. Sistrunk v. State, 630 So.2d 147 (Ala.Crim.App. 1993); Beasley v. State, 408 So.2d 173 (Ala.Crim.App. 1981), cert. denied, 408 So.2d 180 (Ala. 1982); Dailey v. State, 374 So.2d 414 (Ala.Crim.App. 1979). VI.

  4. Irby v. State

    615 So. 2d 1262 (Ala. Crim. App. 1993)   Cited 1 times

    "A variance between the indictment and the proof is immaterial when the alleged variance may be treated as surplusage." Dailey v. State, 374 So.2d 414, 417 (Ala.Cr.App. 1979). For the reasons stated above, the judgment in this cause is due to be, and it is hereby, affirmed.

  5. McDonald v. State

    586 So. 2d 259 (Ala. Crim. App. 1991)   Cited 6 times

    "Review on appeal is limited to review of questions properly and timely raised at trial. Robinson v. State, 428 So.2d 167 (Ala.Cr.App. 1982); Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.), cert. denied, Ex parte Streeter, 406 So.2d 1029 (Ala. 1981), cert. denied, Streeter v. Alabama, 456 U.S. 932, 102 S.Ct. 1984, 72 L.Ed.2d 450 (1982); Oates v. State, 375 So.2d 1285 (Ala.Cr.App. 1979); Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979)."

  6. Smith v. State

    551 So. 2d 1161 (Ala. Crim. App. 1989)   Cited 18 times
    In Smith, this Court overruled the holding in Thornton v. State, 480 So.2d 34, 36 (Ala.Cr.App. 1985), that "if the state elects to prosecute a crime occurring at a particular time, then the State is entitled to a conviction only upon establishing that fact by evidence."

    However, our Alabama case law is clear that there must be a material variance between indictment and proof before a conviction will be overturned for that reason. See e.g., House v. State, 380 So.2d 940 (Ala. 1979) (no material variance between indictment which charged defendant with assaulting Edward Wilburn, engaged 'in the active discharge of his lawful duty or duties as deputy sheriff for Morgan County, Alabama' and proof which showed that Wilburn was in fact engaged in his lawful duties as a jailer at the time of the assault), and Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979) (no material variance between forgery indictment, in which number of check was described as '1881,' and proof that check was numbered '1886'). Since there was no material variance between the indictment and proof in the case at bar, there was no manifest necessity for dismissing the proceedings.

  7. Howard v. State

    506 So. 2d 351 (Ala. Crim. App. 1987)   Cited 5 times

    The court was never presented with this question, and no adverse ruling was made. "An issue raised for the first time on appeal is raised too late for review. Review by this court is limited to matters properly raised in the trial court." Vinzant v. State, 462 So.2d 1037, 1040 (Ala.Cr.App. 1984); Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979). "A party must apprise the trial court of the basis for an objection with sufficient particularity to allow an informed decision to be made on the legal issue involved."

  8. Griffin v. State

    500 So. 2d 83 (Ala. Crim. App. 1986)   Cited 32 times
    In Griffin v. State, 500 So.2d 83, 87 (Ala.Cr.App. 1986), the defendant was admitted to the hospital after he apparently attempted suicide by consumption of alcohol and an overdose of drugs.

    "A variance between the indictment and the proof is immaterial when the alleged variance may be treated as surplusage." Dailey v. State, 374 So.2d 414, at 417 (Ala.Cr.App. 1979). See also Edwards v. State, 480 So.2d 1259, 1262 (Ala.Cr.App.), cert. denied, 480 So.2d 1264 (Ala. 1985); Dunklin v. State, 436 So.2d 8, 11 (Ala.Cr.App. 1983).

  9. Dixon v. State

    476 So. 2d 1236 (Ala. Crim. App. 1985)   Cited 63 times

    Review on appeal is limited to review of questions properly and timely raised at trial. Robinson v. State, 428 So.2d 167 (Ala.Cr.App. 1982); Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.), cert. denied, Ex parte Streeter, 406 So.2d 1029 (Ala. 1981), cert. denied, Streeter v. Alabama, 456 U.S. 932, 102 S.Ct. 1984, 72 L.Ed.2d 450 (1982); Oates v. State, 375 So.2d 1285 (Ala.Cr.App. 1979); Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979). Absent a timely objection to testimony concerning the lineup identification, or a motion to suppress such evidence at trial, this court may not now consider this issue on appeal.

  10. Edwards v. State

    480 So. 2d 1259 (Ala. Crim. App. 1985)   Cited 13 times

    On the other hand, if the variance is on an immaterial issue, and a conviction occurs without the indictment being amended, the defendant has not been prejudiced and, therefore, the conviction will be upheld. House v. State, 380 So.2d 940 (Ala. 1979); 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); Hamilton v. State, 455 So.2d 170 (Ala.Cr.App. 1984); Gilbert v. State, 410 So.2d 473 (Ala.Cr.App. 1982); Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979); Helms v. State, 40 Ala. App. 622, 121 So.2d 104, writ denied, 270 Ala. 603, 121 So.2d 106 (1960). See also Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and Nash v. Towne, 72 U.S. (5 Wall.) 689, 18 L.Ed.2d 527 (1866).