☢ test - Í

Fields v. State, 281 Ga.App. 733, 637 S.E.2d 136 (October 4, 2006). No fatal variance between indictment alleging violation of a protective order and proof of violation of a pretrial bond condition. Weeks v. State, 274 Ga.App. 122, 616 S.E.2d 852 (June 29, 2005). No fatal variance where burglary indictment referred to house under construction as “dwelling house” when no one actually resided therein. Crouse v. State, 271 Ga.App. 820, 611 S.E.2d 113 (March 1, 2005). No fatal variance: indictment charged defendant with illegal dumping on property described by street address and land lot; proof at trial referred to street address, but not land lot or other legal description. “As stated in Callaway v. State, 247 Ga.App. 310 (542 S.E.2d 596) (2000): ‘[M]ere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense charged must be stated, and they must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence.’ (Footnote, citation, and punctuation omitted.) Id. at 314(1)(b). … The legal description of the subject property in this case was not an element of the offenses charged, and any such description in the indictment was unnecessary and constituted mere surplusage. ” Rubaldino v. State, 271 Ga.App. 726, 611 S.E.2d 68 (February 21, 2005). No fatal variance: burglary indictment alleged that defendant entered house with intent to commit assault; evidence showed only that defendant entered bedroom with intent to commit assault. “Georgia courts do not follow an overly technical application of the fatal variance rule, but focus instead on materiality. Edward v. State, 261 Ga.App. 57, 59 (581 S.E.2d 691) (2003). Thus, not every variation between allegation and proof is fatal. Rather, our task is to determine whether the claimed variance affected Rubaldino’s substantial rights. ‘The fatal variance rule requires that: the allegations definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and the allegations must be adequate to protect the accused against another prosecution for the same offense.’ Id.” Mills v. State, 271 Ga.App. 506, 610 S.E.2d 80 (December 27, 2004). No fatal error where defendant convicted of violating OCGA § 40-6-391(k)(1), DUI under 21, where accusation alleged that she was under 18 years old, but evidence showed she was 19 years old. Dudley v. State, 264 Ga.App. 845, 592 S.E.2d 489 (December 18, 2003). “Dudley was indicted for disorderly conduct by acting in a violent or tumultuous manner, by continuing to use profane language after being told to stop and placing the officer in reasonable fear of his life, limb or health.” Evidence at trial, however, showed that defendant was arrested for cursing after being instructed to stop; he otherwise complied with instructions. “[N]o evidence supports his conviction” for disorderly conduct based on “making the officer fear for his safety,” an essential element of the offense. Bell v. State, 276 Ga. 206, 576 S.E.2d 876 (February 10, 2003). “It is well established that those who steal will not be permitted to raise ‘nice and delicate questions’ as to the title of that which is stolen. ‘So far as the thief is concerned, he cannot question the title of the apparent owner.’... [A] variance between joint ownership ‘as alleged and sole ownership as proven is of no legal consequence. The indictment was sufficient to apprise the defendant of the nature of the offense for which he was to be tried so that he could defend against it.’” Gibson v. State , 243 Ga.App. 610, 533 S.E.2d 783 (April 14, 2000). False name and related convictions affirmed; no fatal variance where indictment misidentified the officer to whom defendant gave false information; likewise, counts charging false report of crime, and fleeing and eluding, were not fatally defective, although they likewise misidentified the officer involved. “‘[N]ot every variance in proof from that alleged in the indictment is fatal. The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. Unless the variance subjects defendant to one of these dangers it is not fatal. The true inquiry is whether there has been such a variance as to affect the substantial rights of the accused.’ (Citation and punctuation omitted.) Veal v. State, 211 Ga.App. 879, 880, 440 S.E.2d 762 (1994).” “In both of these instances, Gibson was sufficiently informed of the charge against him so that he could prepare a defense against the charge of giving a false name and fleeing and eluding a law enforcement officer, and no danger exists that he would be prosecuted again for either of these same offenses. Accordingly, the evidence was sufficient to sustain his convictions for these offenses.” Burnette v. State, 241 Ga.App. 682, 527 S.E.2d 276 (December 21, 1999). Conviction for felony bail jumping affirmed. No fatal variance between proof and indictment: indictment correctly showed that notice of trial date was mailed to an address which State acknowledged at trial was incorrect; but indictment also correctly noted that defendant in fact