Farr v. State

127 Ga. App. 120 (1972)

192 S.E.2d 500

FARR v. THE STATE.

47222.

Court of Appeals of Georgia.

Argued June 5, 1972.

Decided September 25, 1972.

Alton T. Milam, for appellant.

John T. Perren, District Attorney, for appellee.

PANNELL, Judge.

The defendant appeals his conviction and sentence for larceny of a motor vehicle.

Defendant's motion for a new trial alleging the verdict is contrary to the evidence and without evidence to support it, decidedly and strongly against the weight of evidence and contrary to law and the principles of justice and equity was denied by the trial judge. The indictment charged the defendant with larceny of "a certain Ford farm-type tractor... painted blue ... bearing identification No. C 238767 ... the property of Ponce de Leon Tractor Company."

While the tractor recovered bore No. C 238767, the uncontradicted evidence indicates that the missing tractor bore Serial No. C 238769. The identification number having been made a necessary and essential part of the description of the tractor in the indictment to distinguish it from other tractors of like make and color, proof that the serial number of the missing tractor was No. C 238769 constitutes a fatal variance between the allegation and the proof. The court erred in overruling the motion for a new trial. Fulford v. State, 50 Ga. 591, 593; Crenshaw v. State, 64 Ga. 449; Robertson v. State, 97 Ga. 206 (22 SE 974); McLendon v. State, 121 Ga. 158 (48 SE 902); Youngblood v. State, 40 Ga. App. 514 (150 SE 457); Martin *121 v. State, 43 Ga. App. 287 (158 SE 635); Wright v. State, 52 Ga. App. 202 (182 SE 862).

Additional assignments of error pertain more specifically to the ground that the verdict is strongly against the weight of evidence, the determination of which was within the sound province of the jury, under proper instructions of the trial judge.

Judgment reversed. Quillian, J., concurs. Hall, P. J., concurs specially.

HALL, Presiding Judge, concurring specially.

The tractor was described in the indictment by make, color, serial number and ownership. The evidence at the trial showed that the tractor recovered from the accused was the same make, color and serial number as the indictment. However the invoice produced by the alleged owners contained the serial number C 238769 instead of the number C 238767 as stated in the indictment and found on the recovered tractor.

It is not necessary to plead a serial number in order to adequately describe the stolen automobile in a theft case. Gee v. State, 110 Ga. App. 439 (138 SE2d 700). This court has also held that a slight discrepancy in the serial number or the model year "does not result in a failure of proof when there is other identification sufficient to identify the vehicle described in the indictment and in the proof as being one and the same." Reece v. State, 125 Ga. App. 49 (1) (186 SE2d 502); Herring v. State, 122 Ga. App. 730 (5) (178 SE2d 551). The question here is whether the evidence meets this test. In my opinion it does not. There was no testimony or other evidence that the tractor recovered from the defendant is the same tractor which was owned by and stolen from the Ponce de Leon Tractor Company.