Seabolt v. State

234 Ga. 356 (1975)

216 S.E.2d 110

SEABOLT v. THE STATE.

29889.

Supreme Court of Georgia.

Submitted April 24, 1975.

Decided May 6, 1975.

Wynn Pelham, for appellant.

Bryant Huff, District Attorney, Dawson Jackson, Assistant District Attorney, Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General, for appellee.

UNDERCOFLER, Presiding Justice.

Appellant was convicted and sentenced for armed robbery. He appeals the denial of his motion for directed verdict and the denial of his motion for new trial on the general grounds. Held:

1. The ground of the motion for directed verdict is fatal variance. Appellant contends he was indicted for armed robbery of "forty-five dollars ($45.00) in U. S. currency" and the state failed to prove the money taken was U. S. currency. The victim testified that appellant took his wallet from his pocket which, among other items, contained forty-five dollars.

As stated in De Palma v. State, 225 Ga. 465, 469 (169 SE2d 801), "We have not been able to locate any Georgia cases which set out a general rule to be applied in the determination of whether or not a variance between the allegation and the proof is so material that it is fatal. The United States Supreme Court, however, has evolved a criterion which seems to us to be reasonable. `The general *357 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 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)." Appellant here was not subjected to either of these dangers and we find no error. See Bell v. State, 227 Ga. 800, 802 (183 SE2d 357).

2. The evidence was sufficient to support the verdict. The victim testified he had known the appellant for many years; that the appellant took his (the victim's) wallet from his pocket while an accomplice "threw" a gun on him and threatened to shoot him if he did not hand over his money.

Judgment affirmed. All the Justices concur.