
    41941.
    MITCHELL v. THE STATE.
    Submitted April 5, 1966
    Decided April 21, 1966.
   Hall, Judge.

This indictment for cheating and swindling alleged that the defendant did “knowingly and falsely represent that he was a good credit risk and that there were no liens or judgments of any kind against his property, and that he then and there had a good job and was' capable of paying a loan in the amount of $112.50, . . .” At the trial a bank officer testified that the defendant, in making application to the bank for a loan “listed his total indebtedness as one hundred dollars to Sears Roebuck and seventy dollars to a Mr. Sheppard listing that as all the debts he had.” “He represented that all he owed was one hundred dollars to Sears Roebuck & Co. and seventy dollars to a Mr. Sheppard.” This was the only evidence offered in support of the indictment, insofar as it related to the representation made by the accused. “The false representation is the foundation upon which all the elements of this charge of cheating and swindling are based. . .” Fischer v. State, 46 Ga. App. 207, 208 (167 SE 200).

The variance between the allegations of the indictment and the proof rendered the conviction contrary to law. Smith v. State, 185 Ga. 365 (195 SE 144); Nalls v. State, 27 Ga. App. 38 (107 SE 354); McDaniel v. State, 54 Ga. App. 407 (187 SE 896).

Other errors alleged in the enumeration of errors should not occur on another trial.

Case remanded for new trial.

Nichols, P. J., and Deen, J., concur.

Casey Thigpen, for appellant.

Thomas A. Hutcheson, Solicitor, for appellee.  