¶1 concurring. I concur in the decision that the writ should be denied.
¶2 The first reason is that Evans failed to establish his right to freedom at this time, even if his contentions are valid. On Evans plea of guilty, he was sentenced for armed robbery. He contends he should have been sentenced for unarmed robbery *452 and that the indictment, while valid to charge unarmed robbery, was insufficient to charge armed robbery.
¶3 The maximum penalty is the same — twenty-five years— in either case, only the mínimums differing. Thus for armed robbery, the penalty is from ten to twenty-five years, while for robbery (unarmed), it is from one to twenty-five years.
¶4 Evans has served less than three years and his right to release is determined by the maximum and not by the minimum sentence. Hence, Evans has many years to serve before he has a legal right to his freedom.
¶5 The second reason is that in the opinion of the writer the indictment was sufficient to charge armed robbery under the provisions of Section 2901.13, Revised Code. The heading is of course not part of the indictment but is one of the surrounding circumstances. It contained the clear statement, “Indictment for Armed Robbery.” The words, “robbery,” and, “armed robbery,” are words easily understood and give clear notice to anyone of different offenses. Equally clear and understandable, in the opinion of this writer, is the language in the indictment which so far as here pertinent, reads as follows :
“… did unlawfully, and being armed and by force and by violence rob Anthony Sabina of his pocketbook containing $48.00 ….” (Emphasis ours.)
¶6 Evans says the indictment should have specified what weapon he was carrying, whether a pistol, knife or other dangerous weapon.
¶7 The indictment was read to Evans including the phrase “and being armed.” He pleaded guilty to robbery while armed. This is a fact which should have been within his personal knowledge. It would appear clear that had he chosen, he could have asked for a bill of particulars, requiring the state to specify and later to prove the weapon with which he was armed. For a defendant intending to contest the charge, there would be good reason for such course of action. For one intending to plead guilty to the charge, it is not apparent what benefit would accrue to Evans.
¶8 Evans had at least two courses of action open to him in the course of his trial. First, ask for a bill of particulars, and second, demur to the indictment. He did neither of these so *453 far as we are informed. Further, he could have stood trial, and, if convicted, could have appealed.
¶9 Having failed to avail himself of these fully adequate remedies and the indictment being, in the opinion of the writer, adequate to inform him of the nature of the accusation against him, Evans cannot now in a collateral attack raise this question. For this reason also, the writ must be denied.