Walker v. State , 146 Ga. App. 237 ( 1978 )

Banke, Judge,

dissenting.

1. While I can agree with most of what has been said in the majority opinion as it pertains to abstract principles of law, it is my view that the majority has assumed one important fact which is not in evidence, nor is it even supported circumstantially by the transcript.

The majority has assumed, to reach the opinion it has, that the appellant took possession of the tools intentionally at the time he took the station wagon. This is clearly refuted by the record. The owner testified that he used the well under the floor board as a storage place for his tools and that the well was covered with a "flap” (T-38). It is undisputed that the station wagon was taken during the night time under somewhat stealthy and sensitive circumstances. Nowhere in the record is there any evidence that the appellant knew the tools were in the automobile when it was lawfully spirited away. In fact,, the circumstantial evidence is overwhelming that he did not know he had possession of the tools until later, when he had an opportunity to find them under the floor board. As determined by the jury, it was at this time that he unlawfully took the tools with the intention of depriving the owner of said property. This was the way he was indicted, the jury so found, and the conviction should be affirmed.

2. Assuming, arguendo, that the defendant in the dead of night searched and inventoried the station wagon before he removed it and, thus, knew the tools were in the well under the floor board, the criterion stated iá DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969) would still be met under the subject indictment. The defendant certainly knew what the charge against him was so that he could prepare his defense and would also be protected against another prosecution for the same offense. Further, the defendant was not charged with a separate and different crime from the one proved. See Hunt v. State, 229 Ga. 869 (195 SE2d 31) (1972). The majority in this case has made an overly-technical application of the fatal variance rule which goes beyond the constitutional standards set forth by the United States Supreme Court in Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314), and which, in my judgment, cannot be justified.

I respectfully dissent.