Fitch v. State8/31/2001
tions in such cases. State v. Saxton, 724 So. 2d 77 (Ala.Crim.App. 1998).
As discussed in Part V-A above, "public funds" was not an element of the crime defined in § 36-25-5(a), Ala. Code 1975, and proof thereof was not necessary to a conviction. In 1995, § 36-25-5(a), Ala. Code 1975, prohibited a public official or employee from using his or her "official position or office to obtain direct personal financial gain for himself, or his family, or any business." The personal financial gain did not have to be derived from public funds. "`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.
"`The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled.' House, 380 So. 2d at 942. `Not every variance is fatal. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629,79 L.Ed. 1314 (1935). Reviewing a claim of variance requires use of a two step analysis: (1) was there in fact a variance between the indictment and proof, and (2) was the variance prejudicial.' United States v. McCrary, 699 F.2d 1308, 1310 (11th Cir. 1983). `The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights' of the accused.' Berger, 295 U.S. at 82, 55 S.Ct. at 630. `Variance from the indictment is not always prejudicial nor is prejudice assumed.' United States v. Womack, 654 F.2d 1034, 1041 (5th Cir. 1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314(1982). The determination of whether a variance affects the defense will have to be made based upon the facts of each case. United States v. Pearson, 667 F.2d 12, 15 (5th Cir. 1982)." Smith v. State, 551 So. 2d 1161, 1168-69 (Ala.Crim.App. 1989); Hunt v. State, 659 So. 2d 933, 950 (Ala.Crim.App. 1994), aff'd, 659 So. 2d 960 (Ala. 1995)(classification of offense as a felony, while erroneous, was mere surplusage); Pardue v. State, 571 So. 2d 320, 328 (Ala.Crim.App. 1989)(value of stolen pistol, though alleged in the indictment, was surplusage and did not have to be proven), rev'd on other grounds, 571 So. 2d 333 (Ala. 1990); Lunceford v. City of Northport, 555 So. 2d 246 (Ala.Crim.App. 1988)(because the location of alleged DUI offense was not a material allegation, proof of the correct location of the driving did not constitute a material variance); Johnson v. State, 405 So. 2d 149, 151 (Ala.Crim.App. 1981)(language "intent to promote or assist the commission of" in indictment was surplusage); Cauley v. State, 14 Ala. App. 133, 135, 72 So. 271, 272 (1916)(the allegation in the indictment asserting the value of stolen cow was not descriptive of the offense, was properly regarded as surplusage, and proof thereof was not necessary).
Moreover, the proof followed the allegations in the indictments. Here, the State proved that the money Fitch had obtained originated from payments made by the Pickens County Commission to the contractor closing the landfill. The funds were derived from the taxpayers of Pickens County. "Laundering" the money through several contractors does not erase the crime. Thus, there was no variance between the indictment and the proof.
VIII.
Fitch contends that the
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