Marsh v. State
| Decision Date | 03 July 1969 |
| Docket Number | No. 44544,No. 1,44544,1 |
| Citation | 169 S.E.2d 615,120 Ga.App. 46 |
| Parties | Jack MARSH v. The STATE |
| Court | Georgia Court of Appeals |
Franklin H. Pierce, Augusta, for appellant.
No appearance for appellee.
Syllabus Opinion by the Court
1. Where the indictment charged the defendant with the offense of larceny of 'one (1) 1965 Chevrolet Automobile, Super Sport, color white, 1964 Georgia Tag Number 6-J-13902, Serial Number 166375 D 104284, of the value of $4200.00,' and the proof showed that the automobile stolen had a 1965 Georgia tag number 6-J-13902, there was a fatal variance between the allegata et probata. See Smith v. State, 185 Ga. 365, 195 S.E. 144 and cases cited therein. And the fact that the owner who identified the car stolen as bearing a 1965 automobile tag, identified the car found in the possession of the defendant as the automobile which he had lost did not serve to identify it as the automobile described in the indictment. Moore v. State, 13 Ga.App. 15, 78 S.E. 772. No witness identified the automobile in general terms as being the one described in the indictment. See in this connection Sloan v. State, 68 Ga.App. 92, 22 S.E.2d 333. The evidence, therefore, did not authorize the conviction.
2. Where a witness testified that the defendant owned the dwelling where the automobile was first located and this was objected to as a conclusion of the witness and the objection was overruled, the right to complain of such ruling was waived where, subsequently thereto, similar evidence was admitted without objection as to this particular dwelling. Hentz & Co. v. Booz, 8 Ga.App. 577, 70 S.E. 108.
3. The trial judge instructed the jury as to the defense of alibi and the defendant excepted to the charge on the ground that he had made no defense of alibi, and the court then instructed the jury: This latter instruction to the jury is not harmful error because it placed the responsibility for giving of the original...
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