COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72174 : : STATE OF OHIO EX REL. : PETITION FOR WRIT OF RICHARD DIX, JR. : MANDAMUS : Relator : : MOTION NO. 84192 -vs- : : RALPH MCALLISTER, JUDGE : JOURNAL ENTRY AND OPINION COURT OF COMMON PLEAS : CUYAHOGA COUNTY, OHIO : : Respondent : : DATE OF ANNOUNCEMENT OF DECISION: JULY 3, 1997 JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Relator: For Respondent: RICHARD DIX, JR., Pro Se STEPHANIE TUBBS JONES, N. 189-913 Cuyahoga County Prosecutor Lorain Correctional Inst. ARTHUR A. ELKINS, Assistant 2075 S. Avon Beldon Rd. County Prosecutor Grafton, Ohio 44044 Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 -2- JAMES D. SWEENEY, C.J.: On March 12, 1997, the relator, Richard Dix, commenced this mandamus action against the respondent, Judge Ralph McAllister, to compel the judge to vacate the conviction against him in the underlying case, State of Ohio v. Richard Dix, Cuyahoga County Common Pleas Court Case No. CR-204600. On March 26, 1997, Judge McAllister, through the Cuyahoga County Prosecutor, moved to dismiss. Mr. Dix filed his opposition on April 30, 1997. For the following reasons, this court grants the motion to dismiss. In early December 1983, Mr. Dix was pimping the woman who lived with him. One night the first transaction went smoothly, but when the woman entered the car of the next customer, an argument ensued. The man, Charles Atterbury, accused the woman of telling the police about a previous encounter. When she left the car, Mr. Dix got in and demanded money from Mr. Atterbury. Then Mr. Dix shot and killed Mr. Atterbury with a shotgun. In January 1984, the grand jury indicted Mr. Dix for aggra- vated murder, R.C. 2903.01, in Cuyahoga County Common Pleas Court Case No. CR-187863. However, this case was dismissed. In January 1986, the grand jury reindicted Mr. Dix in Case No. CR-204600. The indictment read: "The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO, Do find and present, that the above named Defendant(s), on or about the date of the offense set forth above (December 4, 1983), in the County of Cuyahoga, unlawfully and purposely and with prior calculation and design, caused the death of another, to wit: Charles Atterbury." (Emphasis -3- in the original.) The indictment also contained a gun specification. The indict- ment caption read: "AGGRAVATED MURDER R.C. 2903.11 WITH GUN SPECIFICATION." (Emphasis in the original.) However, R.C. 2903.11 is the numerical designation for felonious assault; R.C. 2903.01 is the designation for aggravated murder. The evidence at trial was uncontroverted and overwhelming. The jury convicted Mr. Dix of aggravated murder and the gun specification, and the trial court sentenced him to twenty years to life with three years for the gun specification. This court affirmed the conviction in State v. Dix (March 23, 1987), Cuyahoga App. No. 51881, unreported. The Supreme Court of Ohio denied Mr. Dix's motion for leave to appeal. Additionally, in November 1995, Mr. Dix applied to reopen his appeal; this included an argument that the indictment was defective. This court denied the application: State v. Dix (Feb. 8, 1996), Cuyahoga App. No 51881, unreported, Motion No. 67976. The gravamen of this mandamus action is that the misnumbering of the offense in the indictment caption deprived the trial court of jurisdiction, because without a proper indictment, the court has no jurisdiction. Mandamus is the proper remedy because the writ may be used to compel a court to vacate a judgment rendered without jurisdiction. State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 533 N.E.2d 650. Mr. Dix further argues that the misnumbering misled him and prevented him from mounting a defense, especially relating to a -4- possible double jeopardy argument from the dismissal of the first indictment. These arguments are meritless. First, the misnumbering of the indictment does not invalidate it, much less deprive the trial court of subject matter jurisdiction. Crim. R. 7(B) provides in pertinent part: "Each count of the indictment *** shall state the numerical designation of the statute that the defendant is alleged to have violated. Error in the numerical designation or omission of the numerical designation shall not be ground for dismissal of the indictment ***, or for reversal of a conviction, if the error or omission did not prejudicially mislead the defendant." Similarly, R.C. 2941.08(K) provides "An indictment *** is not made invalid, and the trial, judgment, or other proceedings stayed, arrested, or affected: *** (K) For other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits." In the present case the caption of the indictment clearly stated aggravated murder, and the body of the indictment clearly charged aggravated murder, that Mr. Dix purposely and with prior calculation and design, caused the death of Charles Atterbury. The language of the indictment paralleled the statutory language of R.C. 2903.01(A): "No person shall purposely, and with prior calculation and design, cause the death of another ***." Furthermore, the evidence clearly established the crime charged. The fact that a 0 was replaced by a 1 in the numerical designation in the caption did not and could not mislead anyone -5- in this case. To rule otherwise would be to elevate form over substance to the detriment of justice. Moreover, the cases upon which Mr. Dix relies for the principle that defective indictments should result in dismissals are distinguishable and unpersuasive. State v. Wozniak (1961), 172 Ohio St. 517, 178 N.E.2d 800, concerned an indictment which failed to allege intent which was specifically included as an element in the statute. In State ex rel. Roberts v. Maxwell (1962), 90 Ohio Law Abs. 481, 186 N.E.2d 736, the indictment misstated the elements of burglary, listing instead the elements of housebreaking, a much less severe crime in 1962. The court ruled that such inconsistency omitted a material element of the offense, resulting in fatally flawed indictment. In State v. Ferguson (1967), 13 Ohio App.2d 151, 234 N.E.2d 598, the indictment did not contain the relevant words of the statute. Finally, in State v. Vitale (1994), 96 Ohio App.3d 695, 645 N.E.2d 1277, the indictment charged the defendant with theft on only June 14, but the trial court explicitly ruled that the defendant did not commit a theft on that day. In the these cases authentic, significant defects rendered the indictments invalid. The case, sub judice, does not present such a defect; rather, it is fully analogous to State v. Turpin (1969), 19 Ohio App.2d 117, 250 N.E.2d 94, in which the defendant claimed the indictment was void because the numerical designation was to the General Code, not the Revised Code. The court of appeals rejected this claim. First, the court ruled: "It is -6- fundamental that an indictment is sufficient if it contains the words of the statute defining of the offense." 19 Ohio App.2d at 121. As stated above, Mr. Dix's indictment contained the statutory words defining aggravated murder; the indictment was not defective. Then the Turpin court reasoned that such "defects" "do not tend in any way to prejudice the defendant's constitutional or statutory rights, and there is sufficient matter alleged in the indictment to indicate the crime and the person charged. Such claims are so technical, picayune, frivolous and petty as to deserve no further attention or analysis." Id. at 122. To the extent that Mr. Dix also raises a double jeopardy claim, mandamus will not lie, because such claims are properly reviewable on direct appeal. An adequate remedy at law exists which precludes mandamus. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Accordingly, the above-captioned action is dismissed. Relator to pay costs. PATRICIA A. BLACKMON, J., CONCURS .