Charles v. State

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167 Ga. App. 806 (1983)

307 S.E.2d 703

CHARLES v. THE STATE.

66494.

Court of Appeals of Georgia.

Decided September 8, 1983.

William W. Larsen, Jr., for appellant.

Beverly B. Hayes, District Attorney, William T. McBroom III, H. Jeff Lanier, Assistant District Attorneys, for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted and convicted of the offense of burglary. Defendant appeals. Held:

The indictment specified the burglarized premises to be "THE WAREHOUSE OF SOUTHERN BATTERY AND TIRE COMPANY LOCATED AT 230 EAST JACKSON STREET, DUBLIN, LAURENS COUNTY, GEORGIA." At trial the evidence disclosed that Southern Battery and Tire Company, a sole proprietorship, occupied five warehouses in Dublin, Laurens County, Georgia, each used for storing merchandise. Two of these warehouses were located at 230 East Jackson Street, two on Madison Street and one adjacent to South Washington Street. The warehouse burglarized was the one adjacent to South Washington Street. There was no burglary of either of the warehouses located at 230 East Jackson Street.

"`The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the *807 evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.' Berger v. United States, 295 U.S. 78, 82 (55 SC 629, 79 LE 1314)." De Palma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801). This standard has been held to require specification in a burglary indictment of the particular business structure burglarized when that business operates from two or more locations in the county. State v. Ramos, 145 Ga. App. 301 (243 SE2d 693). See also State v. Green, 135 Ga. App. 622 (218 SE2d 456).

As the allegations and proof do not meet the requirements set forth in Berger v. United States, 295 U.S. 78, 82, supra, and De Palma v. State, 225 Ga. 465, 469 (3), supra, the trial court erred in failing to grant defendant's motion for a directed verdict of not guilty. See in this regard Hunter v. State, 155 Ga. App. 561, 562 (1) (271 SE2d 694).

Judgment reversed. Shulman, C. J., and Birdsong, J., concur.