Ex parte Bush
| Court | Supreme Court of Alabama |
| Writing for the Court | JONES |
| Citation | 431 So.2d 563 |
| Decision Date | 11 February 1983 |
| Parties | Ex parte William BUSH. (Re: William Bush v. State of Alabama) 82-131. |
Page 563
(Re: William Bush
v.
State of Alabama)
Rehearing Denied May 6, 1983.
Page 564
George W. Cameron, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent.
JONES, Justice.
We granted Defendant's petition for review of the Court of Criminal Appeals' affirmance of his capital offense conviction and death sentence. The posture of the trial court proceedings and the facts of the case are fully set out in the appellate court's opinion, 431 So.2d 555, and need not be repeated here. Our careful review of that opinion reveals that each of the issues addressed is resolved in accordance with well-established legal principles relating to Alabama's death penalty statute as pronounced by the Supreme Court of the United States and the appellate courts of this State.
Pursuant to the "plain error" mandate of the last paragraph of ARAP 39(k), however, our search of the record discloses one additional issue not raised by petitioner nor addressed by the Court of Criminal Appeals: Is misciting the code section in the indictment reversible error?
The problem arises because each count of the indictment cites § 13A-5-31(a)(2) as the code section violated. That code section is part of the 1975 capital punishment statute and is a proper citation for crimes occurring before July 1, 1981, the effective date of the 1981 capital punishment statute (now codified as §§ 13A-5-39 through 13A-5-59). The 1981 statute applies to crimes occurring after July 1, 1981. § 13A-5-57.
The indictment citation of § 13A-5-31(a)(2) is in error, because the crime involved in this case occurred on July 26, 1981, twenty-five days after the effective date of the 1981 capital punishment statute. Therefore, the applicable code section is § 13A-5-40(a)(2). Nonetheless, we hold that the technical error in citation is not of such legal significance as to require reversal.
Miscitation of a code section does not void an indictment which otherwise states an offense; and, in the absence of a showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage. Mays v. City of Prattville, 402 So.2d 1114, 1116 (Ala.Cr.App.1981); Coker v. State, 396 So.2d 1094, 1096 (Ala.Cr.App.1981); Fitzgerald v. State, 53 Ala.App. 663, 665, 303 So.2d 162 (1974); Allen v. State, 33 Ala.App. 70, 73, 30 So.2d 479,...
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Lindsay v. State, CR-15-1061
...a defendant to death or to life without parole is advisory only.’ Bush v. State, 431 So.2d 555, 559 (Ala. Crim. App. 1982), aff'd, 431 So.2d 563 (Ala. 1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983). See also Sockwell v. State, [675] So.2d [4] (Ala. Cr. App. 1993). ‘......
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Osgood v. State, CR-13-1416
...a capital case, it does weigh against any claim of prejudice.' Ex parte Kennedy, 472 So. 2d 1106, 1111 (Ala. 1985)(citing Bush v. State, 431 So. 2d 563, 565 (1983))(emphasis in original). As the United States Supreme Court has noted, the appellant's burden to establish that he is entitled t......
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Hunt v. State
...showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage." Ex parte Bush, 431 So.2d 563, 564 (Ala.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 The appellant argues that Ala.Code 1975, § 13A-5-40(a)(8) is unc......
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Lane v. State, CR–10–1343.
...a capital case, it does weigh against any claim of prejudice. ’ Ex parte Kennedy, 472 So.2d 1106, 1111 (Ala.1985) (citing Bush v. State, 431 So.2d 563, 565 (1983) ) (emphasis in original). As the United States Supreme Court has noted, the appellant's burden to establish that he is entitled ......
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Lindsay v. State, CR-15-1061
...a defendant to death or to life without parole is advisory only.’ Bush v. State, 431 So.2d 555, 559 (Ala. Crim. App. 1982), aff'd, 431 So.2d 563 (Ala. 1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983). See also Sockwell v. State, [675] So.2d [4] (Ala. Cr. App. 1993). ‘......
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Osgood v. State, CR-13-1416
...a capital case, it does weigh against any claim of prejudice.' Ex parte Kennedy, 472 So. 2d 1106, 1111 (Ala. 1985)(citing Bush v. State, 431 So. 2d 563, 565 (1983))(emphasis in original). As the United States Supreme Court has noted, the appellant's burden to establish that he is entitled t......
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Hunt v. State
...showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage." Ex parte Bush, 431 So.2d 563, 564 (Ala.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 The appellant argues that Ala.Code 1975, § 13A-5-40(a)(8) is unc......
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Lane v. State, CR–10–1343.
...a capital case, it does weigh against any claim of prejudice. ’ Ex parte Kennedy, 472 So.2d 1106, 1111 (Ala.1985) (citing Bush v. State, 431 So.2d 563, 565 (1983) ) (emphasis in original). As the United States Supreme Court has noted, the appellant's burden to establish that he is entitled ......