Mull v. State , 39 Ga. App. 517 ( 1929 )

Broyles, C. J.

The indictment charged that Ered Mull did “break and enter the dwelling house of J. B. Jackson, a place where valuable goods were contained and stored, with intent to commit a larceny therein; and the said Fred Mull then and there, after having broken and entered said house as aforesaid, did wrongfully, feloniously, fraudulently, and privately take and carry away from said dwelling house, with intent to steal same,” certain articles of value (the articles being specified and their value stated in the indictment). Upon the trial the undisputed evidence showed that although the house belonged to J. B. Jackson, it had not been his dwelling house for twenty years. The jury returned a verdict of guilty of larceny from the house, and the defendant’s motion for a new trial was denied.

There was a fatal variance between the allegations in the indictment and the proof, and the conviction of the accused was contrary to law and the evidence. Lindsey v. State, 9 Ga. App. 299 (2) (70 S. E. 1114). The case of Harrison v. State, 74 Ga. 801, cited in the brief of the solicitor-general, is distinguished by its facts from the case at bar.

Judgment reversed.

Luke and Bloodworth, JJ., concur.