Colton v. State

231 Ga. 502 (1973)

202 S.E.2d 444

COLTON v. THE STATE.

28299.

Supreme Court of Georgia.

Submitted November 16, 1973.

Decided December 3, 1973.

Willie Gene Colton, pro se.

Eldridge W. Fleming, District Attorney, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, for appellee.

MOBLEY, Chief Justice.

Willie Gene Colton appeals from his conviction of armed robbery. He contends that there was a fatal variance between the allegation of the indictment that he took $19 and the proof that he took an undetermined amount of money between $14 and $18. He asserts that the court erred in overruling his motion for directed verdict of acquittal because of the failure of the state to prove that he took the amount of money alleged in the indictment.

The victim of the robbery positively identified the appellant. On direct examination she testified that the appellant by the use of a pistol took approximately $19 from the cash register in her store. She stated that she did not know exactly how much was in the register. On cross examination she stated that she based her testimony that $19 was taken from the cash register on information given her by the sheriff and the district attorney in regard to the amount found under the seat of the automobile in which the appellant was riding. She further testified that the appellant took all the money that was in her cash register except for some change. The Sheriff of Fayette County testified that he did not remember the exact amount of money recovered from under the seat of the automobile in which the appellant was riding, but it seemed to him that it was about $14 or $18.

This evidence does not show a fatal variance between the allegation and proof as to the amount of money taken by the appellant in the robbery. See Bell v. State, 227 Ga. 800, 801 (183 *503 SE2d 357). The court did not err, therefore, in refusing to direct a verdict of acquittal.

Judgment affirmed. All the Justices concur.