Opinion
35513.
SUBMITTED OCTOBER 5, 1979.
DECIDED OCTOBER 17, 1979.
Habeas corpus. Butts Superior Court. Before Judge Sosebee.
Arthur K. Bolton, Attorney General, William B. Hill, Jr., Assistant Attorney General, for appellant.
William A. Owens, pro se.
The state appeals from the grant of the writ of habeas corpus to the appellant, whose petition attacked the validity of his conviction of escape.
"The lawful confinement of the [appellee] at the time of his escape was a necessary element of that offense ..." Dixon v. State, 234 Ga. 157 ( 215 S.E.2d 5) (1975). There was no fatal variance between the allegation in the indictment, that the appellee had been convicted of murder in Harris and Muscogee Counties, and the proof, that he had been convicted of murder only in Harris County, since the only purpose of such allegation was to show lawful confinement, which was both alleged and proved without regard to the objected-to, admittedly erroneous allegation. See Berger v. United States, 295 U.S. 78, 82 ( 55 S.C. 629, 79 LE 1314) (1935) and its application in Georgia in cases commencing with De Palma v. State, 225 Ga. 465, 469 ( 169 S.E.2d 801) (1969). The erroneous allegation was therefore merely surplusage, and was harmless error where the judge imposed the sentence, which was approved by the sentence review panel, pursuant to Code Ann. § 27-2511.1 (Ga. L. 1974, pp. 352, 358; 1977, pp. 1098, 1104), and where there was no direct appeal from the conviction of escape. See, e.g., Green v. Green, 231 Ga. 311 ( 201 S.E.2d 440) (1973) and cits.; Atkins v. Martin, 229 Ga. 815 ( 194 S.E.2d 463) (1972) and cit.
Proved by his custodian's testimony, and admitted in the appellee's petition for the writ of habeas corpus. The record indicates that the appellee's sentence for the conviction had been paroled, but that the parole had been revoked.
Accordingly, the court erred in granting the writ of habeas corpus.
Judgment reversed. All the Justices concur.