Caldwell v. State

• Decision Date: 09 July 1976
• Docket Number: No. 52257,No. 3,52257,3
• Citation: 228 S.E.2d 219,139 Ga.App. 279
• Parties: Robert CALDWELL v. The STATE
• Court: Georgia Court of Appeals

Page 219

228 S.E.2d 219

139 Ga.App. 279

Robert CALDWELL v. The STATE.

No. 52257.

Court of Appeals of Georgia, Division No. 3.

July 9, 1976.

Albert G. Ingram, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Stephen E. Curry, Asst. Dist. Atty., Augusta, for appellee.

Where the state alleges in an indictment that the defendant committed a crime at a certain time, but at trial seeks to prove that the crime was committed at another time, surprising defendant and rendering worthless his alibi for the time alleged in the indictment, the state has failed to fulfill the requirement '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.' In these circumstances the defendant, upon his motion therefor, is entitled to sufficient time to prepare his defense in response to the newly-asserted time of the crime. Unless time is of the essence of the crime, however, or unless it is expressly made material, the time variance may not ordinarily be reached by motion for directed verdict of acquittal or by the usual general grounds of a motion for new trial.

WEBB, Judge.

Robert Caldwell was indicted for aggravated assault which was alleged to have occurred on August 12, 1974. Caldwell's sole defense was to be alibi for that date. At trial, however, the district attorney, in his opening statement, informed the jury that the evidence would show that the offense was committed on September 12 rather than on August 12 as alleged in the indictment. Defendant's counsel made no motion for continuance or postponement because of the time discrepancy, nor did he move to limit the state to the date alleged in the indictment. Instead he proceeded to make his opening statement, telling the jurors that he would prove an alibi for 'the time and place and date alleged in the indictment.'

On direct examination the investigating officer testified that the shooting occurred on September 12. Rather than objecting to this testimony on the ground that the time testified to varied from the time alleged, defendant's counsel chose to cross-examine the officer as to the date of the occurrence. Testimony was thus elicited from him that a typographical error had caused the police report to read August 12, which date apparently found its way onto the indictment.

The victim also took the stand and testified, again without objection, that the shooting occurred on September 12; and at the conclusion of her testimony the state rested. It was not until then that defendant's counsel, rather than moving for a continuance or postponement, moved for a directed verdict of acquittal on the ground that 'as I heard this testimony this morning for the first time in this case, I was almost in a state of shock to learn that this incident occurred on September 12, 1974 and not August 12, 1974,' and that the time variance deprived defendant of his sole defense of alibi for which he had subpoenaed witnesses. ¹ The motion was overruled, and defendant was convicted. This appeal followed.

1. Defendant properly complied with an order of this court directing the filing of the enumeration of errors and the brief, and the motion to dismiss the appeal is denied. Rule 14(a), this court (Code Ann. § 24-3614(a)).

2. The trial court, in overruling the motion for directed verdict of acquittal, relied upon the general time-variance rule exemplified by Brown v. State, 82 Ga.App. 673, 675, 62 S.E.2d 732, 733: 'From the earliest times, both in England and in Georgia, it has been held that unless time is an essential element of the offense charged, ² the time of the commission of the offense alleged in the indictment . . . is immaterial; and, proof of the commission of the offense at any time prior to the finding of the indictment . . . will sustain a conviction if the proof also established the commission of the offense within the statute of limitations.' This rule extends back as far as McLane v. State, 4 Ga. 335, 341, and was reaffirmed as recently as Jefferson v. State, 136 Ga.App. 63, 66, 220 S.E.2d 71. See the numerous citations under catchword 'Time,' Code Ann. § 27-701, and those in Georgia Digest, Indictment & Information, Key No. 176. See also 41 Am.Jur.2d, Indictments and Informations § 268. Thus, at least until DePalma v. State, 225 Ga. 465, 169 S.E.2d 801, it could safely be said that unless time was of the essence of the crime, or was expressly made material, a time discrepancy did not create a 'fatal variance' between the allegate and the probata. Manning v. State, 123 Ga.App. 844(1b), 182 S.E.2d 690.

In DePalma v. State, 225 Ga. 465, 469, 169 S.E.2d 801, 805, supra, the Supreme Court adopted the 'fatal variance' rule of Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314: "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 evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense." Since DePalma the trend has been away from overly-technical applications of the fatal variance rule, at least with respect to the description or amount of the stolen property, ³ the owner or possessor of the stolen property, ⁴ and the manner of committing the crime. ⁵

But whether the DePalma standard would be violated with respect to a time variance does not appear to have been decided by our courts. Defendant contends that although a time variance may not ordinarily be material, as held in the general time-variance cases, supra (which, however, like the five cases to follow, do not consider DePalma), the rule should be otherwise whether an alibi defense is asserted, and that the time of the offense should be held to be a material issue in an alibi case. Neither defendant nor the state cites any authority on this point, and we do not find that the question has been directly ruled upon by either of our appellate courts.

The only cases bearing upon the subject are Fortson v. State, 125 Ga. 16, 53 S.E. 767, Carr v. State, 95 Ga.App. 513, 98 S.E.2d 231, Gravitt v. State, 220 Ga. 781, 783, 141 S.E.2d 893, McGruder v. State, 213 Ga. 259, 98 S.E.2d 564, and Carmichael v. State, 228 Ga. 834(2), 188 S.E.2d 495. See also Dacy v. State, 17 Ga. 439, 441; Tipton v. State, 119 Ga. 304(3), 46 S.E. 436. In Fortson v. State, 125 Ga. 16, 53 S.E. 767, supra, the Supreme Court held a charge erroneous which required the defendant to account for his whereabouts and show the impossibility of his presence at the place of the commission of the offense during the entire period of the statute of limitation instead of only the time and place of the commission of the crime as shown by the evidence for the state.

In Carr v. State, 95 Ga.App. 513, 98 S.E.2d 231, supra, where the defense was alibi, the court charged the jury that a conviction was authorized upon proof that defendant committed the crime charged in the indictment at any time within four years prior to its return. This court, in holding that the charge was not reversible error, stressed that the date alleged in the indictment, the date of the crime as shown by the state's proof, and the date of the alibi all coincided so that presumably the jury was not misled by the charge.

The same result was reached in Gravitt v. State, 220 Ga. 781, 141 S.E.2d 893, supra, where the Supreme Court, in refusing to reverse because of a similar charge, stated that 'All of the State's evidence showed that the robbery occurred on the date charged in the indictment . . .. The evidence for the defendant supporting his contention that he was not at the scene of the crime at the time of its commission related to this same date and time. In order to convict the defendant the jury must have believed that he committed the crime on the date charged in the indictment.' P. 784, 141 S.E.2d p. 896.

McGruder v. State, 213 Ga. 259, 260, 98 S.E.2d 564, supra, bears some factual similarity to the instant case. In McGruder the indictment alleged that the crime occurred on September 27. The prosecutor, in his opening statement, stated that he intended to prove that the offense was committed on September 3 rather than September 27 as alleged. Defendant moved that the state be limited to the date alleged in the indictment because alibi was his main defense. The trial court overruled the motion and evidence was admitted, over objection, that the offense was committed on September 3. The Supreme Court found no reversible error in these rulings, noting that no request for continuance was made and that witnesses testified to an alibi for September 3, apparently rendering any error harmless.

Finally, in Carmichael v. State, 228 Ga. 834, 188 S.E.2d 495, supra, the indictment alleged that the crime occurred on February 1 while the evidence showed that it was committed on January 31. The trial court charged, in effect, that a conviction was authorized for an offense committed on a date other than that alleged in the indictment. However, there was no evidence of alibi, and the Supreme Court stated in affirming: 'There is no indication by this record that the appellant was deprived of any Constitutional right by reason of the fact that the indictment charged one date, whereas the crime actually occurred shortly before midnight on the day before. No alibi evidence was offered, nor was any continuance requested on the ground of surprise that the evidence showed the commission of the crime on a date different from that shown in the indictment, and that additional time would be needed to procure alibi testimony to account for the appellant's whereabouts on that date.' P. 837, 188 S.E.2d p. 498.

This latest ruling of the Supreme Court is indicative of the view that the...