Sloan v. State , 68 Ga. App. 92 ( 1942 )

The police officer testified that the actual perpetrator of the theft said that he stole the tires in question, and that the defendant was assisting by standing by. An employee of the White Motor Company, in whose charge the tires were, testified: "The tires described in the accusation in this case were stolen from the plant of the White Motor Co;" and that he recognized "the tires which were subsequently recovered from Mr. Mayfield's [whom the other evidence showed to be the person to whom the defendant and his confederate sold the tires] place as being the tires which were the property of the White Motor Company." This witness described the tires as being "a Firestone heavy duty tire and rim and one Dayton-McClarin tire, and one Pennsylvania tire and two General heavy duty tires." This witness also testified that he did not know the numbers on the tires, which numbers were alleged in the accusation as a part of the description. There was no testimony that the numbers on the tires were different from the numbers alleged in the accusation; hence there was no testimony relative to variation as to the numbers alleged and the numbers proved. Thus, there was no testimony to show that the tires stolen were not the tires described in the accusation, and the positive unobjected-to and uncontradicted testimony was that they were the same tires. Nightengale v. State, 94 Ga. 395 (2) (21 S.E. 221). Hence I think there was no fatal variation between the allegata and the probata.