Gomez v. State

234 Ga. 614 (1975)

216 S.E.2d 844

GOMEZ v. THE STATE. WHITMAN v. THE STATE.

29971, 29972.

Supreme Court of Georgia.

Submitted May 23, 1975.

Submitted June 11, 1975.

Decided June 17, 1975.

*615 Harvey A. Monroe, Paul McGee, for appellants.

William H. Ison, District Attorney, Douglas N. Peters, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, for appellee.

NICHOLS, Chief Justice.

The defendants were jointly indicted, tried and convicted of armed robbery. Each was sentenced to six years in the penitentiary. Separate appeals were filed but each defendant filed identical enumerations of error.

1. The first enumeration of error in each appeal complains that there was a fatal variance in the allegata and the probata. The second enumeration of error alleges that the evidence was insufficient to show that the lawful possession of the vehicle taken in the robbery was in the person alleged to be the owner. The person from whose possession the vehicle was taken testified that although the vehicle was legally in his roommate's name, he had made the payments on it, maintained insurance on the vehicle in his name and used the car as if it was in all respects his own.

"In an indictment for robbery, ownership of the property taken may be laid in the person having actual lawful possession of it, although he may be holding it merely as the agent of another, and it is not necessary to set forth in the indictment the fact that the person in whom the ownership is laid is holding it merely as agent of the real owner." Spurlin v. State, 222 Ga. 179 (7) (149 SE2d 315). In Shelton v. State, 111 Ga. App. 351, 353 (141 SE2d 776), It is stated: "As pointed out in Thomas v. State, 125 Ga. 286 (54 SE 182), one charged with larceny will not be heard `to raise nice and delicate questions as to the title of the article stolen.'"

The testimony in this case authorized a finding that the victim was in lawful possession of the vehicle taken and there was no fatal variance between the allegation in the indictment and the proof presented on the trial. These enumerations of error are without merit.

2. The evidence authorized the verdict, and there is no merit in the third enumeration of error which contends that the evidence did not support the verdict.

Judgment affirmed. All the Justices concur.