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.
"`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.
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.
"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.
"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)."
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.
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."
"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).
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.
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).