Colton v. State

Supreme Court of Georgia

Colton v. State

202 S.E.2d 444, 231 Ga. 502, 1973 Ga. LEXIS 755

CourtSupreme Court of Georgia

DecidedDecember 3, 1973

Docket28299

StatusPublished

Cited by6 cases

This text of 202 S.E.2d 444 (Colton v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Colton v. State, 202 S.E.2d 444, 231 Ga. 502, 1973 Ga. LEXIS 755 (Ga. 1973).

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Opinion

Mobley, Chief Justice.

Willie Gene Colton appeals from his conviction of armed robbery. He contends that there was a fatal variance between the allegation of the indictment that he took $19 and the proof that he took an undetermined amount of money between $14 and $18. He asserts that the court erred in overruling his motion for directed verdict of acquittal because of the failure of the state to prove that he took the amount of money alleged in the indictment.

The victim of the robbery positively identified the appellant. On direct examination she testified that the appellant by the use of a pistol took approximately $19 from the cash register in her store. She stated that she did not know exactly how much was in the register. On cross examination she stated that she based her testimony that $19 was taken from the cash register on information given her by the sheriff and the district attorney in regard to the amount found under the seat of the automobile in which the appellant was riding. She further testified that the appellant took all the money that was in her cash register except for some change. The Sheriff of Fayette County testified that he did not remember the exact amount of money recovered from under the seat of the automobile in which the appellant was riding, but it seemed to him that it was about $14 or $18.

This evidence does not show a fatal variance between the allegation and proof as to the amount of money taken by the appellant in the robbery. See Bell v. State, 227 Ga. 800, 801 (183 *503 SE2d 357). The court did not err, therefore, in refusing to direct a verdict of acquittal.

Submitted November 16, 1973 Decided December 3, 1973. Willie Gene Colton, pro se. Eldridge W. Fleming, District Attorney, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, for appellee.

Judgment affirmed.

All the Justices concur.

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Mobley, Chief Justice.

Willie Gene Colton appeals from his conviction of armed robbery. He contends that there was a fatal variance between the allegation of the indictment that he took $19 and the proof that he took an undetermined amount of money between $14 and $18. He asserts that the court erred in overruling his motion for directed verdict of acquittal because of the failure of the state to prove that he took the amount of money alleged in the indictment.

The victim of the robbery positively identified the appellant. On direct examination she testified that the appellant by the use of a pistol took approximately $19 from the cash register in her store. She stated that she did not know exactly how much was in the register. On cross examination she stated that she based her testimony that $19 was taken from the cash register on information given her by the sheriff and the district attorney in regard to the amount found under the seat of the automobile in which the appellant was riding. She further testified that the appellant took all the money that was in her cash register except for some change. The Sheriff of Fayette County testified that he did not remember the exact amount of money recovered from under the seat of the automobile in which the appellant was riding, but it seemed to him that it was about $14 or $18.

This evidence does not show a fatal variance between the allegation and proof as to the amount of money taken by the appellant in the robbery. See Bell v. State, 227 Ga. 800, 801 (183 *503 SE2d 357). The court did not err, therefore, in refusing to direct a verdict of acquittal.

Submitted November 16, 1973 Decided December 3, 1973. Willie Gene Colton, pro se. Eldridge W. Fleming, District Attorney, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, for appellee.

Judgment affirmed.

All the Justices concur.

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202 S.E.2d 444, 231 Ga. 502, 1973 Ga. LEXIS 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colton-v-state-ga-1973.

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