Sessions v. State

143 Ga. App. 395 | Ga. Ct. App. | 1977

Smith, Judge.

The appellant was convicted by a jury of theft by taking and appeals the judgment contending the evidence varied from the proof and the circumstantial evidence was insufficient to rule out reasonable hypotheses of innocence. We affirm.

1. The indictment charged theft of a J. C. Penney television, serial number F66230410, of the value of $139.95. The only proof concerning the stolen item showed it to be a television, with a serial number and value exactly as charged. There was no proof offered that the television was a "J. C. Penney” brand. This lack of proof amounted to a variance, but a variance is not fatal unless it misinforms the defendant or leaves him open to subsequent prosecutions for the same offense. See DePalma v. State, 225 Ga. 465 (169 SE2d 801) and Dobbs v. State, 235 Ga. 800 (221 SE2d 576) incorporating the test of Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314). The question is whether there has been such a variance as to affect the substantial rights of the defendant. Foster v. State, 142 Ga. App. 805 (Smith, J., dissenting). The proof here conformed with a nine-character serial number, as well as with the general description of the stolen item, and it cannot be said that the substantial rights of the defendant were prejudiced.

Submitted May 23, 1977 Decided October 4, 1977. Clayton Jones, Jr., for appellant. William S. Lee, District Attorney, Loring A. Gray, Jr., Assistant District Attorney, for appellee.

2. The evidence supported the verdict. The jury was fully and correctly instructed that it must rule out every reasonable exculpatory hypothesis which might explain the defendant’s conduct. Although such hypotheses were advanced, the jury was authorized to conclude that they were not reasonable.

Judgment affirmed.

Bell, C. J., and McMurray, J., concur.