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Jackson v. State, 316 Ga.App. 588, 730 S.E.2d 69 (July 3, 2012). Aggravated assault and related convictions affirmed; count of indictment charging burglary survived general demurrer despite erroneous reference to “aggravated battery” in text . “Although the offense was mislabeled as ‘aggravated battery’ in the body of Count 5, ‘it is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the [ S]tate. It is not the name given to the bill which characterizes it, but the description in the averments of the indictment.’ (Citation and punctuation omitted.) Williams v. State, 165 Ga.App. 69, 71(4) (299 S.E.2d 402) (1983). See State v. Eubanks, 239 Ga. 483, 484 (238 S.E.2d 38) (1977), superseded in part on other grounds as stated in Palmer, 282 Ga. 466; Striplin v. State, 284 Ga.App. 92, 94–95 (643 S.E.2d 361) (2007). The averment portion of Count 5, which described the offense that had been committed by Jackson, followed the language of the burglary statute and fully apprised him of the offense charged. See OCGA § 16–7–1(a). [fn] Furthermore, the subject heading of Count 5 (although misspelled) clearly referred to the offense as burglary, and the heading was followed by a citation to the burglary statute itself.” Leftwich v. State, 299 Ga.App. 392, 682 S.E.2d 614 (July 7, 2009). Rape and related convictions affirmed; trial court properly found that indictment effectively recited tolling of statute of limitation. Defendant’s indictment for rape and related offenses contained an apparent typographical error in Counts 2, 4 and 5: language therein explaining that the statute of limitations had been tolled for 14 years because the perpetrator was unknown erroneously “referred back to Count 1, rather than the count in question. Leftwich contends that the tolling provisions were essential elements of each of the Counts, which needed to be perfect in form. We disagree that the language in question constitutes a fatal flaw in Counts 2, 4, and 5. Under OCGA § 17-3-2(2), the period of limitation is tolled during any period in which ‘[t]he person committing the crime is unknown....’ However, ‘where an exception is relied upon to prevent the bar of the statute of limitation, it must be alleged and proved.’ McKeehan v. State, 274 Ga.App. 14, 16(2) (616 S.E.2d 489) (2005).” The exception here was stated in each relevant Count; the reference back to Count 1 was merely “superfluous language.” Bailey v. State, 280 Ga. 884, 635 S.E.2d 137 (September 18, 2006). In defendant’s murder prosecution, trial court properly denied motion to quash indictment. “[B]oth in light of our own precedent and in light of current statutory law, we hold that a trial court does not err in denying a special demurrer where the defect in an indictment is not material and does not prejudice the defendant’s rights. [fn: The decision by the Court of Appeals in Hubbard v. State, 123 Ga.App. 597 (181 S.E.2d 890) (1971), is disapproved to the extent that it is inconsistent with this opinion. ] ” Defect here, misspelling of grand juror’s name, did not prejudice defendant and was not a material defect. Disapproved in Wagner v. State , 282 Ga. 149, 646 S.E.2d 676 (June 11, 2007) “to the extent that Bailey can be construed to hold that a material defect that is not prejudicial to the defendant does not require the quashing of a defective count of an indictment.” Franklin v. State , 243 Ga.App. 440, 533 S.E.2d 455 (April 11, 2000). Conviction for timber theft affirmed; trial court properly denied special demurrer, filed after verdict. Unwieldy wording of indictment wasn’t enough to mislead defendant as to the nature of the charge against him. “‘ Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment or accusation or citation. Thus, a defendant who was not misled to his prejudice by any imperfection in the indictment or accusation or citation cannot obtain reversal of his conviction on that ground.’ (Citations and punctuation omitted; emphasis supplied.) Miller v. State, 182 Ga.App. 700, 701, 356 S.E.2d 900 (1987). Shelton v. State, 216 Ga.App. 634, 455 S.E.2d 304 (1995); Lewis v. State, 215 Ga.App. 486, 487-488, 451 S.E.2d 116 (1994). See State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977). Other than directing our attention to the poorly drafted language in the indictment, Franklin has not alleged that he was prejudiced thereby. He has not alleged that he was confused or misled by the indictment. He has not alleged that the jury was confused by the indictment, nor does the record show such. He has not alleged that the indictment failed to apprise him of the offense he had to defend against or that the language of the indictment leaves him open to future prosecutions for the same offense.” Indictment here alleged that defendant “did unlawfully being in lawful possession of timber, the property of Ray A. York, with a value greater than $500, appropriate said property with the intention of depriving said owner of said property.” Defendant here contends that he couldn’t be “unlawfully in lawful possession” of the timber; Court points out that “unlawfully” here modifies “appropriate.” 30. VENUE Grace v. State, 295 Ga. 657, 763 S.E.2d 461 (September 22, 2014). Following guilty plea to murder, trial court properly denied motion for out-of-time appeal; record didn’t support defendant’s claim of defective indictment based on failure to allege venue . “Each count alleged that the crime occurred in ‘the County aforesaid,’ which was ‘Thomas County,’ and ‘“‘[u]nless the character of the place is an essential element of the offense, an indictment which charges the crime to have been committed in a particular county is sufficiently certain as to place,’”’” quoting Stephens v. State, 291 Ga. 837,