156 Ga. App. 646 | Ga. Ct. App. | 1980
Defendant appeals his conviction of the offense of theft by taking. We affirm.
Defendant was indicted for taking the property (certain rolls of carpet) of Hawthorne Industries, Inc., although the evidence showed that the property was actually owned by Ludlow Carpets. Defendant submits that such a variance between the allegata and probata was fatal. We disagree.
The evidence showed that Hawthorne Industries, Inc., doing business as Roger’s Dye and Finishing, is a commission dyer of other manufacturers’ carpet and that Hawthorne Industries was in lawful possession of the Ludlow carpet at the time it was taken.
Under the authority of Garrett v. State, 147 Ga. App. 666 (1) (250 SE2d 1) we find no fatal variance. “It is well established that those who steal will not be permitted to raise ‘nice and delicate questions’ as to the title of that which is stolen. [Cit.] Thus, ‘ “[t]he ownership of personal property, in an indictment for larceny, may be laid in a bailee having possession of the property when it was stolen, though the bailment was gratuitous. A like description of ownership of personal property mentioned in an indictment for burglary, is sufficient...” [Cits.]’ ” See also Hall v. State, 132 Ga. App. 612 (208 SE2d 621). Furthermore, we note that this state no longer strictly applies the fatal variance rule. Tyson v. State, 145 Ga. App. 21, 22 (243 SE2d 314).
Finding no error for the reason assigned, the judgment of the trial court is affirmed.
Judgment affirmed.
