Dobbs v. State
| Decision Date | 06 January 1976 |
| Docket Number | No. 30366,30366 |
| Citation | 221 S.E.2d 576,235 Ga. 800 |
| Parties | Clarence Ricky DOBBS v. The STATE. |
| Court | Georgia Supreme Court |
Robert H. Sullivan, Asst. Dist. Atty., Carrollton, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Atlanta, for appellee.
Clarence Ricky Dobbs was tried by a judge without a jury and convicted of armed robbery, aggravated assault, and motor vehicle theft. He was sentenced to life imprisonment for armed robbery, ten years for aggravated assault to run consecutively, and five years for motor vehicle theft to run concurrently with the ten year sentence. He was represented at trial by retained counsel. He is represented in this appeal by different counsel.
At trial the victim identified the defendant as a boy (age 16) who had worked for her the summer before. She testified that the defendant came to her house and asked for a church donation. When she refused saying she did not have any money, he pushed his way in the door. He asked her where her pocketbook was, and when she said she was not sure exactly, he grabbed her and cut her with a knife several times on the neck. A deep cut on her thumb was inflicted as she struggled to keep the knife from her throat. He then began to hit her over the head with an ashtray. The victim received multiple wounds. Finally he took $15 and her car keys and fled in her car, leaving the victim bound and bleeding.
That same day police apprehended the defendant driving the victim's car. When first questioned, he denied stealing the car from the victim, but later he admitted taking it. The defendant took the stand and admitted entering the house and taking the money and car. He contended that the knife wounds were accidental.
1. Defendant enumerates as error the denial of his pretrial motion for psychiatric examination. He argues that the report was not made available to the court for determination of whether the defendant was capable of standing trial as well as capable of committing a crime. The transcript of the trial shows that a psychiatric examination was made and that the results were that the defendant was sane. Defendant did not assert at trial that he was mentally incapable of standing trial or of committing a crime. Although the results of the psychiatric examination were not introduced into evidence, this enumeration of error is without merit.
2. Defendant contends that the trial court erred in denying his pretrial motion for discovery. By motion he requested a copy of the indictment, a list of witnesses that the State intended to call, and any evidence in the State's files that might be favorable to him. On appeal, he does not contend that he was denied copy of the indictment or list of witnesses but argues that he was denied discovery under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
There is nothing in the record to indicate that the defendant's motion was denied or that the prosecutor had evidence favorable to the accused or failed to comply with the request. This enumeration of error is without merit. Chenault v. State, 234 Ga. 216(3), 215 S.E.2d 223 (1975); Hicks v. State, 232 Ga. 393, 396, 207 S.E.2d 30 (1974).
3. Defendant contends that there is a fatal variance between the allegation in the indictment charging him with motor vehicle theft and the proof presented at trial.
The indictment charged the defendant with taking 'one 1973 2-door Chevrolet Malibu automobile, dark brown body with beige top, Georgia tag number MRL 826 property of May Pierce Combs.' The victim testified to her ownership of a 1973 Chevrolet, 2-door, Malibu, brown with cream top, and that the defendant had taken it. The defendant admitted to the police that he stole the car and he also testified that he did so. According to the trial transcript the arresting police officer identified the car as a 1973 Chevrolet Malibu with license number MRL 26, rather than MRL 826. It is the officer's testimony which the defendant argues created the fatal variance.
In DePalma v. State, 225 Ga. 465, 469, 169 S.E.2d 801, 805 (1969), this court adopted the criterion developed by the United States Supreme Court for determining whether or not a variance is fatal. "The general rule that allegations and proor 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 S.Ct. 629, 79 L.Ed. 1314.' Here the variance complained of did not subject the defendant to either of these dangers. Seabolt v. State, 234 Ga. 356, 216 S.E.2d 110 (1975); DePalma v. State, supra.
Defendant relies upon Marchman v. State, 129 Ga.App. 22, 198 S.E.2d 425 (1973), where the variance was a Narco instead of a Narvo aircraft radio, and upon Marsh v. State, 120 Ga.App. 46, 169 S.E.2d 615 (1969), where the variance was a 1965 Georgia auto tag number 6-J-13902 instead of a 1964 Georgia tag with that same number.
Marchman, supra, followed McLendon v. State, 121 Ga. 158, 48 S.E. 902 (1904), which found that the evidence showing that the defendant stole some flour and tobacco was insufficient to make out the case alleged in the indictment that the defendant stole one box of Sweep Stakes tobacco, five pounds Duke's mixture smoking tobacco, and one 19 pound sack of Capitola flour. There the court said: 'If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as main part, since the one is essential to the identity of the other.'
Marsh, supra, followed Smith v....
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