Summary
In Livingston v. State, 122 Ga. App. 152 (2) (176 S.E.2d 520), defendant was indicted for the burglary of the storehouse of Wheeler's Men Boys Wear, Inc. The proof shows holes were made in the roof of "Wheeler's Mens Shop" — "Wheeler's Mens Store," and "Wheeler's."
Summary of this case from Moore v. StateOpinion
45325.
SUBMITTED MAY 6, 1970.
DECIDED JULY 6, 1970.
Burglary. Hall Superior Court. Before Judge Blackshear.
Wesley R. Asinof, Robert B. Thompson, for appellant.
Jeff C. Wayne, District Attorney, for appellee.
1. "An adjourned term of court is but a continuation and a part of the regular term." Carter v. State, 14 Ga. App. 242 ( 80 S.E. 533). Where without any order taken the term of court following the term at which defendant made his demand for trial continued beyond the statutory two weeks set for a "regular term" it was a continuance and part of the regular term. The defendant's demand for release because he was not timely tried is without merit.
2. The indictment for burglary alleges that the defendant and another broke into the storehouse of Wheeler's Men Boys Wear, Inc. The proof shows that two holes were made in the roof of "Wheeler's Mens Shop," "Wheeler's Mens Store" and "Wheeler's." There is no testimony of ownership in the record, since the appellations used in the testimony do not refer to any entity, natural or artificial, nor are they identified as a trade name of any entity. Neither is there any testimony, as there was in Smith v. State, 118 Ga. App. 464 ( 164 S.E.2d 238), that the words were used interchangeably or intended to refer to the same owner. Failure to prove ownership substantially as alleged in the indictment is a fatal variance. Groce v. State, 51 Ga. App. 202 ( 179 S.E. 825); Morgan v. State, 63 Ga. 307; Lawson v. State, 68 Ga. App. 830 (3) ( 24 S.E.2d 326).
3. The evidence in the case is weak and is entirely circumstantial in its nature. Whether or not it is sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused need not be decided, since the case is to be tried again.
Judgment reversed. Evans, J., concurs. Hall, P. J., concurs in Divisions 1 and 2.