Holmes v. State

147 S.E. 776, 39 Ga. App. 556, 1929 Ga. App. LEXIS 418

Opinion

Broyles, C. J.

The defendant was convicted, under section 720 of the Penal Code of 1910, of the wrongful sale of personal property which, it was charged, he had previously included in a bill of sale to a certain corporation. It was alleged in the indictment that the bill of sale was executed by the defendant, John Holmes, and Mrs. Victoria Holmes, whereas upon the trial the undisputed evidence disclosed that it was executed by Mrs. Victoria Holmes alone. The allegation as to the execution of the bill of sale being essential, it must be proved as laid in the indictment, and the variance between the allegation and the proof is fatal. See, in this connection, Rogers v. State, 29 Ga. App. 363, 365 (115 S. E. 668), and cit.; Horton v. State, 21 Ga. App. 120 (3) (93 S. E. 1012); Thompson v. State, 118 Ga. 330 (3) (45 S. E. 410); Perkins v. State, 29 Ga. App. 278 (3), 280 (115 S. E. 27), and cit. It follows that the verdict was contrary to law and that the court erred in refusing the grant of a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.