Edwаrd Scott Mann was found guilty of armed robbery and sentenced to fifteen years, to serve seven. He now brings this appeal. Held:
1. Appellant cites as error the trial court’s failure to grant еither a motion for directed verdict of acquittal or a motion for new trial on the ground thаt there existed on the indictment a defective date. The subject crime occurred оn June 15,1982, but the indictment listed the date of the offense as June 14,1982. Appellant argues that because of the defective date, he was unable to properly prepare his cаse.
OCGA § 17-9-1 (b) (Code Ann. § 27-1802) provides: “The defendant shall be entitled to move for a directed verdict at the close of the evidence offered by the prosecuting attorney or at the сlose of the case____” In this case appellant moved for a directed verdict bеfore any evidence was presented; thus, the trial court did not err in denying that motion. In addition, “[a]ssuming . . . that there was a variance between the allegata and the probata in regаrd to the time of the commission of the crime, a motion for directed verdict was not the
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proper vehicle for obtaining relief. The [appellant] should have made a motiоn for continuance, postponement or recess if surprised by a time variance.”
Roberts v. State,
Furthermore, the trial court offered appellant’s counsel a recess in which to prepare his alibi witnesses for a different date. However, counsel declined the offer. In
Redwing Carriers, Inc. v. Knight,
Moreover, appellant in the case at bаr does not appear to have suffered any harm as a result of the contradictory dates. “[I]f defendant, relying upon an alibi defense for the time alleged in the indictment, is surprised and prejudiced by a time variance, upon his motion therefor he will be afforded sufficient timе to prepare his defense to meet the new date.”
Caldwell v. State,
supra at 287. Our review of the reсord shows that the indictment containing the date June 14, 1982 did not mislead or misinform appellant in such a manner as to impair his ability to defend nor did it surprise him at trial. See generally
Maxey v. State,
2. Aрpellant lists several enumerations of error contending that the evidence was not sufficient to support the verdict, including a motion for directed verdict made at the closе of the trial. The evidence shows that on the afternoon of June 15, 1982 appellant entеred Dean Lott’s Furniture Store and robbed the owner at gunpoint. During the course of the robbery the owner’s wife entered the store. Both the owner and his wife positively identified appellаnt on the date of his arrest and at trial as their assailant. In addition, they identified the automobile used by appellant in the robbery. Thus, we find the evidence more than sufficient for any rationаl trier of fact to have found appellant guilty of the crime charged beyond a
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reasonable doubt. See
Wade v. State,
3. Appellant’s last enumeration of error contends that the trial court improperly considered the in-court identification of the appellant. Appellant argues that the in-court identification was tainted as a result of the one-car and one-man show-up involving the co-defendant.
No objection was made during the course of the trial when the victims, Mr. and Mrs. Lott, positively identified the appellant as their assailant. Each testified that they got a good look at the perpetrator during the robbery, that the store was well lighted and that their in-court identification was based solely on their independent recollection of seeing appellant during the robbery. Thus, the in-court identification was not improperly considered. See
Code v. State,
Judgment affirmed.