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Theft by taking. Douglas Superior Court. Before Judge Fudger.
Stancell appeals his conviction, by a jury, of theft by taking. Held:
1. Appellant alleges a fatal variance in the allegata and the probata. The accusation stated that the appellant did unlawfully "take one 226 NAPA Battery, one R87 Delco Battery and two R89 Delco Batteries, falued [sic] at $11.00, the property of Service Supply Co., with the intent to deprive the said Service Supply Co. thereof." Although the Delco batteries were accurately described, the NAPA battery was in fact a "NAPA 2260." In addition, the batteries belonged to Service Supply Co., Inc., not Service Supply Co., a nonentity. Neither of these inaccuracies constitutes a "fatal variance." See Caldwell v. State, 139 Ga. App. 279 (228 SE2d 219) and cits.
Crowley v. State, 141 Ga. App. 867 (234 SE2d 700)." Dotson v. State, 144 Ga. App. 113, 114 (240 SE2d 238). Accordingly, the trial court did not err in failing to charge the jury as to the value of the stolen items.
3. "As to the general grounds, this court is bound by the 'any evidence' rule and must accept the state's version of the evidence, as was done by the jury and the trial judge." Franklin v. State, 136 Ga. App. 47, 48 (220 SE2d 60).
John T. Perren, District Attorney, Kenneth L. Shigley, Assistant District Attorney, for appellee.
Coney, Tinsley & Tinsley, William C. Tinsley, II, for appellant.
SUBMITTED JUNE 26, 1978 -- DECIDED JULY 14, 1978.
Friday May 22 05:01 EDT

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