Stancell v. State

Birdsong, Judge.

Stancell appeals his conviction, by a jury, of theft by taking. Held:

1. Appellant alleges a fatal variance in the allegata and the probata. The accusation stated that the appellant did unlawfully "take one 226 NAPA Battery, one R87 Delco Battery and two R89 Delco Batteries, falued [sic] at $11.00, the property of Service Supply Co., with the intent to deprive the said Service Supply Co. thereof.” Although the Delco batteries were accurately described, the NAPA battery was in fact a "NAPA 2260.” In addition, the batteries belonged to Service Supply Co., Inc., not Service Supply…