dissent">McMurray, Presiding Judge,

dissenting.

“In Ross v. State, 195 Ga. App. 624 (1 b) (394 SE2d 418), this court was confronted with a count of aggravated sodomy which averred that appellant had committed the offense in one manner and in one manner only. The evidence failed to prove that the offense was committed in the manner averred, although it was established the offense would have been committed in another statutory manner not averred. This court noted the facts in Rosswere distinguishable from those cases where an indictment avers several different manners in which the offense was committed and there exists evidence sufficient to support a finding of guilt as to one (but not all) of these averred manners, and held: ‘ “ ‘If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. . . . (N)o averment in an indictment can be rejected as surplus-age which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. (Cits.) ... To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance. . . . (Cits.)’ ” (Cits.)’ Accord Feagin v. State, 198 Ga. App. 460 (2) (402 SE2d 80).” Barnett v. State, 204 Ga. *837App. 491, 496 (3), 497-498 (420 SE2d 43).

Decided October 19, 1993Reconsideration denied November 10, 1993Lane, O’Brien, Caswell & Taylor, Richard T. Taylor, for appellant.Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, R. Javoyne Reed, W. Cliff Howard, Assistant Solicitors, for appellee.

Inasmuch as the accusation charged defendants with violating OCGA § 16-9-55 by fraudulently obtaining public housing, it was incumbent upon the prosecution to prove that defendants committed the offense in that manner. The evidence adduced at trial established that defendants were eligible to obtain public housing — but that they schemed to obtain additional rent subsidies (i.e., subsidies over and above that to which they were entitled) by failing to disclose their true income. Thus, in my view, there is a fatal variance between the allegata and the probata.

I respectfully dissent.

Citation profile

Relationships

How this case has been treated — in progress