Oglesby v. State

233 S.E.2d 52, 141 Ga. App. 206, 1977 Ga. App. LEXIS 1838

• Court: Court of Appeals of Georgia
• Decided: February 7, 1977
• Docket: 53257
• Status: Published

Opinion

McMurray, Judge.

Defendant was convicted in two counts of selling marijuana on two separate occasions. He was sentenced to serve three years on each count consecutively. On appeal, error is enumerated because the court erred in allowing the conviction to stand since there was an alleged fatal variance in the allegata and the probata. Held:

The basis of this complaint is the testimony of an undercover agent who sought to purchase marijuana from the defendant who refused to sell it to him directly, although agreeable to sell it to another who was present (first count). As to the second count the defendant agreed to leave some marijuana hidden on the agent’s automobile.

Generally, defects in the form of the accusation or indictment are waived unless there is an objection raised by demurrer or motion to quash before trial, or after conviction by motion in arrest of judgment. Reid v. State, 129 Ga. App. 660, 664 (8) (200 SE2d 456). A defendant will not be heard after conviction to urge defects in the indictment unless the defects are so great that the indictment is absolutely void. See Hubbard v. State, 129 Ga. App. 793, 794 (1) (201 SE2d 337); Mealor v. State, 135 Ga. App. 682 (218 SE2d 683).

The indictment alleges that the marijuana was sold to the officer. The evidence shows the marijuana was sold to the officer by and through another, the money being handed to the other person who then walked to the center of the room and the marijuana and money were exchanged. This defect, if any, is not so great as to void the indictment. See Mealor v. State, 135 Ga. App. 682, supra.

The testimony as to the observance of the defendant placing the marijuana on top of the left front wheel of the undercover agent’s automobile, together with testimony that he received the money from the undercover agent proved the purchase and sale by and between the agent and the defendant as alleged in the indictment.

The enumeration of error is without merit.

Judgment affirmed.

Bell, C. J., and Smith, J., concur. Submitted January 18, 1977 Decided February 7, 1977. Archie L. Gleason, for appellant. Richard E. Allen, District Attorney, Evita A. Paschall, Assistant District Attorney, for appellee.