¶1(Concurring specially)-
¶2I agree that the writ must be quashed, but I reach this result only because current criminal procedure does not allow an indictment to be amended. Proposed Rule 13.5, Ala.R.Crim.P. (advisory committee draft, dated June 1, 1977), would have permitted the charge “to be amended, without the defendant’s consent, at any time before verdict or finding if no additional or different offense is charged, and if substantial rights of the defendant are not prejudiced,” but this proposed rule has not been adopted; consequently, I agree with the Court of Criminal Appeals’ determination that there was a fatal variance; therefore, the writ we originally granted is due to be quashed.
¶3JONES, J., concurs.