Seabolt v. State

• Court: Georgia Supreme Court
• Writing for the Court: UNDERCOFLER
• Citation: Seabolt v. State, 216 S.E.2d 110, 234 Ga. 356 (Ga. 1975)
• Decision Date: 06 May 1975
• Docket Number: No. 29889,29889
• Parties: Johnny SEABOLT v. The STATE.

Page 110

216 S.E.2d 110

234 Ga. 356

Johnny SEABOLT v. The STATE.

No. 29889.

Supreme Court of Georgia.

May 6, 1975.

Wynn Pelham, Lawrenceville, for appellant.

Bryant Huff, Dist. Atty., Dawson Jackson, Asst. Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

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. currently' 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 DePalma v. State, 225 Ga. 465, 469, 169 S.E.2d 801, 805, '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 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 S.Ct. 629, 79 L.Ed. 1314).' Appellant here was not subjected to...