Marchman v. State, 47836
| Decision Date | 06 April 1973 |
| Docket Number | No. 47836,No. 1,47836,1 |
| Citation | 129 Ga.App. 22,198 S.E.2d 425 |
| Parties | Marvin L. MARCHMAN v. The STATE |
| Court | Georgia Court of Appeals |
Weiner & Bazemore, Paul S. Weiner, Terrell E. Abernathy, Jonesboro, for appellant.
Ben J. Miller, Dist. Atty., Thomaston, for appellee.
Syllabus Opinion by the Court
The defendant appeals to this court from a judgment of the Spalding Superior Court entered upon a jury verdict of guilty of theft by taking.
In this court, the defendant makes the following enumerations of error: (1) There was a fatal variance between the allegations adduced on trial with regard to the description adduced on trial witn regard to the description of the stolen property. (2) The evidence was insufficient to show beyond a reasonable doubt that the serial number on the stolen property was the same as that contained in the indictment. (3 & 4) The evidence did not exclude the reasonable hypothesis that the defendant was innocent of the offense charged. (5) The court erred in failing to charge with regard to whether the value of the property was in excess of $100. (6) That the court erred in charging with regard to recent possession of stolen items. (7) The statement by the court 'this is a felony offense' was error and amounted to a direction that a felony had been committed. Held:
1. The indictment charged that the defendant did 'unlawfully and with force and arms take and carry away one Narvo Avionics, Mark 16 Nov./Com., Serial No. 11FM7, of the value of $850, the property of a corporation to-wit: Air Comm Engineering, Inc.'
On the trial of the case the following testimony was given with regard to the identification of the stolen items. Mr. Fincke, a witness for the State, stated Mr. Fincke gave the serial number of the radio as '11FM7.' Mr. Fincke also testified that Narco stands for 'National Aeronautical Radio Corporation.' There was testimony by Mr. Good, a State's witness, that the serial number of the radio he obtained from the defendant was 11FM7 and that the radio was a Narco Mark 16 radio serial number 11FM7.
The state argues that the insertion of the 'v' instead of 'c' in the indictment was a clerical error; that the doctrine of idem sonans should be applied. Biggers v. State, 109 Ga. 105, 106, 34 S.E. 210; Lovett v. State, 9 Ga.App. 232(1), 70 S.E. 989, as well as the wider view expressed in Wilson v. State, 67 Ga.App. 404, 405, 20 S.E.2d 433, to-wit: that in a homicide the important issue is the identification of the person and not the identification of the name. The doctrine of idem sonans is normally utilized only with regard to similar personal names (Webb v. State, 149 Ga. 211(1), 99 S.E. 630), but even if it were applicable to property which is the subject of larceny, it would have no force here since Narvo and Narco are not words having a similar sound. Black's Law Dictionary (4th Ed.) p. 880; Thompson v. State, 58 Ga.App. 679, 680, 199 S.E. 787; Roland v. State, 127 Ga. 401, 402, 56 S.E. 412.
The State contends that we should follow Williamson v. State, 28 Ga.App. 470; 111 S.E. 683, where the indictment identified a bale of cotton as being 'No. 39, marked F.G.C. Co. to D.C. Co.' and the proof on the trial showed that the bale was marked 'F.G. Co. to D.C. Co.' the court held that it was not incorrect for the trial judge to charge that this was a jury issue.
However, in a long line of cases both this court and the Supreme Court have held that if an indictment sets out the offense as having been done in a particular way the proof must show it without variance. "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." McLendon v. State, 121 Ga. 158, 48 S.E. 902. See Key v. State, 84 Ga.App. 599, 601, 66 S.E.2d 773; Fulford v. State, 50 Ga. 591, 593. The only exception occurs where the indictment contains mere surplusage. Hardrick v. State, 98 Ga.App. 649, 652, 106 S.E.2d 342.
In Youngblood v. State, 40 Ga.App. 514, 515, 150 S.E. 457, it was alleged that a railroad car was broken into which was described as 'marked Frisco No. 130476.' The proof adduced at the trial failed to show that the word Frisco was marked on the car and the court held that there was a fatal variance. In Wright v. State, 52 Ga.App. 202, 182 S.E. 862, the indictment described a stolen automobile as having the motor number 'P.E. 5369' and the proof showed that the motor number of the vehicle was 'P.C. 5369.' This was held to be a fatal variance between the allegata and the probata. There are other decisions adopting the same rationale. See for example Marsh v. State, 120 Ga.App. 46, 169 S.E.2d 615 involving a license number different from the...
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...Smith v. State, 185 Ga. 365, 195 S.E. 144, and refused to follow Marsh v. State, 120 Ga.App. 46, 169 S.E.2d 615 and Marchman v. State, 129 Ga.App. 22, 198 S.E.2d 425 (affd., Marchman v. State, 234 Ga. 40, 215 S.E.2d Applying the Berger-De Palma test, we find that there was no fatal variance......
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