Soles v. State , 47 Ga. App. 758 ( 1933 )

Broyles, C. J.

Counsel for the plaintiff in error in this case say in their brief that the sole question for determination by this court is whether there is a fatal variance between the allegata and the probata. In overruling the certiorari the judge of the superior court said in his order: “The record raises a single question. It is charged in the accusation that the defendant W. L. Soles, ‘with force and arms and violence, and with a reckless disregard for the safety of other persons, did operate and drive an automobile upon and against C. T. McCorkle and the automobile in, which the said person was then and there traveling.’ The evidence in support of this allegation by C. T. McCorkle was to the effect that the car driven by Soles did not, itself, come in contact with the person of the said McCorkle, but that it struck the car in which McCorkle was driving, and by reason of the impact [he] received the injuries or assault alleged in the accusation. The sole question is whether or not there is a fatal variance between the allegata and the probata. I am in considerable doubt about it. It is a close question. However, except for the act of the defendant in driving the car described in the accusation against the car of McCorkle, there would have been no injury. While I recognize that the proof should be strictly construed in the light of the charge, yet I am of the opinion that this is not a fatal variance. Accordingly the certiorari is overruled.” We agree with the foregoing ruling. The cases cited by counsel for the plaintiff in error are not controlling in this ease. Judgment affirmed.

MacIntyre and Guerry, JJ., concur.