Hunter v. State , 155 Ga. App. 561 ( 1980 )

Deen, Chief Judge.

Robert Hunter brings this appeal following his conviction of burglary alleging a fatal variation between the allegata and the probata.

1. Hunter was indicted for burglary “on the 18th day of August . . . Nineteen Hundred Seventy-Eight . . . unlawfully and without authority, and with intent to commit a theft therein, entered the business house of Harry W. West the owner thereof, d/b/a West’s Grocery, located on Georgia Highway No. 373, on the north side of said highway, approximately ten (10) miles from the city limits of Calhoun, Georgia.”

A police officer testified that he responded to a call to go to West’s Grocery concerning a burglary on August 17,1978, and that it is located due east of Calhoun on Dews Pond Road about seven miles east of Calhoun. Harry W. West testified that he operated a business known as “Dews Pond Grocery” which was burglarized and is located about seven miles east of Calhoun on Dews Pond Road. He did not testify as to the date of the alleged burglary. “ ‘The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ [Cits.]” Price v. State, 142 Ga. App. 120 (235 SE2d 387) (1977).

Submitted May 5, 1980 Decided September 5, 1980 Eugene F. Edge, for appellant. Charles Crawford, District Attorney, James Eugene Greene, Assistant District Attorney, for appellee.

The present case is distinguishable from Ingram v. State, 137 Ga. App. 412 (224 SE2d 527) (1976). In that case, the court applied the same test as in Price v. State, supra, and found that an indictment alleging a burglary at “Davis Bros. Cafeteria & Motor Lodge...” gave the defendant sufficient notice that he was indicted for a burglary of the premises leased to “Davis, Brothers, Incorporated.” In the present case, there was testimony concerning a burglary at “West’s Grocery,” but there was no evidence to show that it and “Dews Pond Grocery” were the same business establishment and known by both names or that Highway 373 was also called “Dews Pond Road.”

As the allegations and proof do not meet the requirements set forth in Price v. State, supra, and Ingram v. State, supra, the trial court erred in failing to grant Hunter’s motion for a directed verdict.

2. As this court can only consider the sufficiency of the evidence, an enumeration alleging that the verdict was against the weight of the evidence cannot be considered. Ridley v. State, 236 Ga. 147 (223 SE2d 131) (1976).

Judgment reversed.

Quillian, P. J, McMurray, P. J., Smith, Shulman, Banke, Birdsong and Carley, JJ., concur. Sognier, J., dissents.