Harrison v. State, 385 S.E.2d 774 (Ga. Ct. App. 1989). · Go Syfert
Search
Harrison v. State, 385 S.E.2d 774 (Ga. Ct. App. 1989). Cases Citing This Book View Copy Cite
29 citation events (18 in the last 25 years) across 1 distinct court.
Strongest positive: Thompson v. State (gactapp, 2013-03-07)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 11 distinct citers.
cited Cited as authority (rule) Thompson v. State
Ga. Ct. App. · 2013 · confidence medium
Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989).
discussed Cited as authority (rule) Douglas Thompson v. State
Ga. Ct. App. · 2013 · confidence medium
If “a variance exists between the victim’s name as alleged in the indictment and as proven at trial, . . . the variance is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim.” Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989).
discussed Cited as authority (rule) Monfort v. State
Ga. Ct. App. · 2006 · confidence medium
But Herrero testified that he also uses the last name “Agosta.” “[Wjhere a variance exists between the victim’s name as alleged in the indictment and as proven at trial, . . . the variance is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use *31 of a nickname or alias by the victim.” (Citations omitted.) Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989).
discussed Cited as authority (rule) Duncan v. State
Ga. Ct. App. · 2006 · confidence medium
Georgia courts have held that “where a variance exists between the victim’s name as alleged in the indictment and as proven at trial,... the variance is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim.” (Citation omitted.) Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989).
discussed Cited as authority (rule) Clark v. State
Ga. Ct. App. · 2006 · confidence medium
If the victim named in the indictment and proven at trial are two different people, then a fatal variance has occurred, but a fatal variance generally has not occurred if the two names refer to the same individual, “such as where a mere misnomer is involved.” Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989).
discussed Cited as authority (rule) Mooney v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2001 · confidence medium
Cockrell v. State, 248 Ga. App. 359, 362 (2) ( 545 SE2d 600 ) (2001), quoting Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989); see also Parks v. State, 246 Ga. App. 888, 889 (1) ( 543 SE2d 39 ) (2000); Harris v. State, 197 Ga. App. 695 -696 (1) ( 399 SE2d 284 ) (1990).
discussed Cited as authority (rule) Cockrell v. State
Ga. Ct. App. · 2001 · confidence medium
Partridge v. State, 187 Ga. App. 325, 327 (3) ( 370 SE2d 173 ) (1988). 1 Lester v. State, 226 Ga. App. 373, 376 (2) ( 487 SE2d 25 ) (1997). 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Collier v. State, 157 Ga. App. 109, 110 (2) ( 276 SE2d 262 ) (1981). 4 Williams v. State, 208 Ga. App. 12, 13 ( 430 SE2d 157 ) (1993). 5 Denson v. State, 212 Ga. App. 883, 884 (2) ( 443 SE2d 300 ) (1994). 6 DePalma v. State, 225 Ga. 465, 469-470 ( 169 SE2d 801 ) (1969). 8 Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989).
cited Cited as authority (rule) Mathis v. State
Ga. Ct. App. · 1999 · confidence medium
Harrison v. State, 192 Ga. App. 690, 691 (1) ( 385 SE2d 774 ) (1989).
cited Cited as authority (rule) Harris v. State
Ga. Ct. App. · 1990 · confidence medium
Harrison v. State, 192 Ga. App. 690, 691 ( 385 SE2d 774 ) (1989).
discussed Cited "see" Farmer v. State (2×)
Ga. Ct. App. · 1993 · signal: accord · confidence high
Accord Harrison v. State, 192 Ga. App. 690, 691 ( 385 SE2d 774 ) (1989).
discussed Cited "see, e.g." Kenny Lynn McCullouch v. State (2×)
Ga. Ct. App. · 2020 · signal: see also · confidence low
Without any evidence presented as to Steven Schild’s possible relationship to the incident, the State cannot rely on the evidence as to the burglary of Bethany Schild’s unit to support this conviction because “[i]f the victim named in the indictment and proven at trial are two different people, then a fatal variance has occurred[.]” Clark v. State, 278 Ga. App. 412, 414 (1) ( 629 SE2d 103 ) (2006) (physical precedent only); see also Harrison v. State, 192 Ga. App. 690 ( 385 SE2d 774 ) (1989) (conviction for robbery reversed where the evidence at trial showed that the victim was a diffe…
Harrison
v.
the State
A89A1264.
Court of Appeals of Georgia.
Sep 5, 1989.
385 S.E.2d 774
Harriss, Hartman, Aaron & Townley, Amy E. Abernathy, for appellant., Ralph Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.
Banke, Sognier, Pope.
Cited by 13 opinions  |  Published
Banke, Presiding Judge.

The appellant brings this appeal from the denial of his motion for new trial following his conviction of armed robbery. Held:

1. It is contended that there was a fatal variance between the indictment and the proof in that the indictment alleged a robbery of Phil Stephenson, the owner of the service station where the robbery occurred, whereas the evidence established that the victim had been, Randy Hicks, an employee of the service station. The state does not dispute that Hicks and Stephenson are two different individuals but|[*691] contends that the variance cannot be considered fatal in view of the Georgia Supreme Court’s holding in McKisic v. State, 238 Ga. 644 (2), 646 (234 SE2d 908) (1977), that “the identity of the person alleged to have been robbed is not an essential element of the crime [of armed robbery] and need not be proved by direct evidence.”

We do not find McKisic to be controlling under the circumstances of the present case, inasmuch as it did not involve a situation in which the person robbed was shown to have been someone other than the person identified as the victim in the indictment. The armed robbery victim in McKisic was a security guard who had been employed at the location where the robbery occurred for only a few days and who quit immediately following the robbery. He was not available to testify at trial, and none of his former co-employees who had witnessed the robbery could remember his name. However, a police investigator identified him as Ronny Hollifield, which was the name alleged in the indictment. The Supreme Court concluded that under these circumstances the material allegations of the indictment had been proven.

The general test for determining whether a variance between the allegations and the proof is fatal is as follows: “ ‘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, omitted.] Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314)” DePalma v. State, 225 Ga. 465, 469-70 (169 SE2d 801) (1969). Even, under this test, however, it has been held that “ ‘no averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed).’ ” Walker v. State, 146 Ga. App. 237 (1), 242 (246 SE2d 206) (1978).

In cases such as the present one, where a variance exists between the victim’s name as alleged in the indictment and as proven at trial, it has generally been held that the variance is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim. See Wilson v. State, 67 Ga. App. 404 (20 SE2d 433) (1942) (where it was held that the appellant’s indictment for the murder of “Clayburn Blash” was not fatally at variance with evidence identifying the victim as “Cleveland Blash”); Bland v. State, 182 Ga App. 626 (356 SE2d 704) (1987) (holding that an indictment alleging the commission of certain offenses against the person and property of “Blossom Henderson” was not fatally at variance with evidence identifying the victim as “Daisy M. Henderson,” where[*692] a rational trier of fact could have determined beyond a reasonable doubt that the two names referred to the same person). Cf. Anno: Homicide: Identification of Victim as Person Named in Indictment or Information, 86 ALR2d 722.

Decided September 5, 1989. Harriss, Hartman, Aaron & Townley, Amy E. Abernathy, for appellant. Ralph Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.

It is apparent without dispute from the evidence in the present case that the person identified as the victim in the indictment was not in fact the person against whom the robbery was committed, and the state has suggested no reason why this error could not have been corrected prior to trial. Being aware of no decision from any state or federal appellate court in the nation upholding a conviction of a crime of personal violence under such circumstances, we hold that the variance was fatal and that the trial court consequently erred in denying the appellant’s motion for new trial.

2. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Sognier and Pope, JJ., concur.