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Lawskills.com Georgia Caselaw
FAMBROUGH v. THE STATE.
55658.
SHULMAN, Judge.
Burglary. Cobb Superior Court. Before Judge Bullard.
This appeal is from appellant's conviction for burglary.
1. Two enumerations of error, one on the general grounds and one complaining of pre-sentencing procedure, have been abandoned and will not be considered.
3. Contending that there was no evidence that the storage area appellant allegedly entered was the place named in the indictment, appellant claims that there was a fatal variance between the allegata et probata. On the contrary, the record contains unequivocal and uncontradicted testimony that the place from which appellant took a lawn mower was an integral part of the structure in which the business named in the indictment is located. There was no variance.
4. The state's witnesses identified appellant in court as the burglar. Appellant now contends that the in-court identification was tainted because appellant was the only black man in the courtroom. That argument has no merit. The state sufficiently showed that the in-court identification sprang from an independent and untainted source (see Yancey v. State, 232 Ga. 167 (205 SE2d 282)), to wit, the opportunity the witnesses had to view appellant at the time the crime was committed. One witness watched appellant remove the lawn mower from the burglarized premises; the others chased him down and apprehended him. The reliability of the identification was sufficiently established.
428 (1) (136 SE 830).
Thomas J. Charron, District Attorney, Sallie G. Thompson, Assistant District Attorney, for appellee.
Johnny Fambrough, pro se.
Huff & Moore, Richard L. Moore, for appellant.
SUBMITTED APRIL 10, 1978 -- DECIDED JUNE 20, 1978.
Friday May 22 04:10 EDT


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