         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    March 18, 2008 Session

                  STATE OF TENNESSEE v. PERRY A. MARCH

                     Appeal from the Criminal Court for Davidson County
                             No. 99-B-1290 Steve Dozier, Judge



                      No. M2006-02732-CCA-R3-CD - Filed July 15, 2008



JOSEPH M. TIPTON , P.J., concurring.

        I concur in the results reached and most of the reasoning used in the majority opinion. I write
separately to stress the importance of complying with Tennessee Code Annotated section 40-13-202,
which requires that the “indictment must state the facts constituting the offense in ordinary and
concise language . . . in a manner so as to enable a person of common understanding to know what
is intended and with the degree of certainty which will enable the court, on conviction, to pronounce
the proper judgment.” To me, alleging the particular property stolen is not surplusage; it is required.
With the indictment alleging the theft of U.S. Currency, proving the theft of other property would
constitute a variance.

        The issue of whether the variance is material, i.e., constitutes prejudice, is another matter.
In the present case, I believe the proof is susceptible to a finding that the defendant stole currency
in depositing the cashed checks in his bank account. To the extent the proof may be interpreted
otherwise, I agree with the majority opinion relative to the indictment, bill of particulars, and the
facts warranting a conclusion that any variance was not material.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE
