Opinion
60101.
SUBMITTED JUNE 6, 1980.
DECIDED SEPTEMBER 5, 1980.
Theft by taking. Bartow Superior Court. Before Judge White.
David C. Keever, Mickey R. Thacker, for appellant.
Charles Crawford, District Attorney, for appellee.
James Robert Riles, Jr. was convicted of theft by taking. He appeals the trial court's denial of his motion for a new trial and enumerates as error the verdict as being strongly against the weight of the evidence; the denial of his motion for a continuance based on surprise; the refusal to charge the jury on alibi; and the failure to grant a new trial on the basis of newly discovered evidence. We reverse.
The indictment charged appellant with theft by taking on August 20, 1979. In his opening remarks to the jury, the prosecutor asserted that the state would prove the alleged crime occurred on August 18, 1979. Appellant thereupon claimed surprise and moved for a continuance contending that his defense was based on alibi evidence for August 20 and not for August 18. The trial court took the motion under advisement and overruled it at the close of the state's evidence. Appellant then presented several witnesses, including himself, who testified as to his whereabouts between 12:00 midnight and 8:30 a. m. on August 20. The testimony was sufficient to raise an alibi defense for that date.
The instant case is controlled by our holding in Caldwell v. State, 139 Ga. App. 279 ( 228 S.E.2d 219) (1976): "Where the state alleges in an indictment that the defendant committed a crime at a certain time, but at trial seeks to prove that the crime was committed at another time, surprising defendant and rendering worthless his alibi for the time alleged in the indictment, the state has failed to fulfill the requirement `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.' In these circumstances the defendant, upon his motion therefor, is entitled to sufficient time to prepare his defense in response to the newly-asserted time of the crime." The trial court erred in denying appellant's motion for continuance.
Judgment reversed. McMurray, P. J., and Banke, J., concur.