Bennett v. State, 51419
| Decision Date | 01 December 1975 |
| Docket Number | No. 51419,No. 3,51419,3 |
| Citation | 136 Ga.App. 806,222 S.E.2d 207 |
| Parties | J. C. BENNETT v. The STATE |
| Court | Georgia Court of Appeals |
William I. Sykes, Jr., Gainesville, for appellant.
Jeff C. Wayne, Dist. Atty., Roland H. Stroberg, Asst. Dist. Atty., Gainesville, for appellee.
Jimmy Clayton Bennett was indicted and tried for burglary of a 38-caliber revolver from a motor vehicle. This is an appeal from his conviction for said offense. Held:
A person commits the offense of burglary from a motor vehicle when, without authority and with intent to commit a felony therein, he enteres or remains in said motor vehicle. Code Ann. § 26-1601. In the instant case, the state's evidence was that an unknown person had entered the pickup truck and had taken the revolver from it. Shortly thereafter, the defendant sold the revolver to an acquaintance, despite initial protestations of a companion who claimed that the gun was hers.
The state's evidence fails to show that the defendant had unlawfully entered the truck and removed the gun therefrom. The only evidence connecting the defendant to this burglary is that later that day or the following day, the defendant had the gun which his companion claimed to own in his possession and sold it to a third party. An unauthorized entry by the defendant into the pickup truck cannot be proved nor inferred simply from recent possession of the stolen revolver. Knowles v. State, 124 Ga.App. 377, 183 S.E.2d 617. Although it is normally not error to refuse to direct a verdict in a criminal case, where the state fails to establish the elements of the offense for which the defendant is being tried, a verdict of acquittal is demanded. Code Ann. § 27-1802. Hence, it was error to deny the defendant's motion for a directed verdict.
Since this case will not be retried, it is unnecessary to consider the other enumerations of error. Code Ann. § 26-507; Marchman v. State, 234 Ga. 40, 215 S.E.2d 467.
Judgment reversed.
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...did not define burglary as an unlawful entry into a building or other structure at the time of his conviction. See Bennett v. State, 136 Ga.App. 806, 222 S.E.2d 207 (1975) (describing the unlawful entry into an automobile as a "burglary"). Furthermore, Miles contends that the district court......
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Selph v. State, 53375
...service station, and in the absence of such proof the evidence was insufficient to convict him of burglary, relying on Bennett v. State, 136 Ga.App. 806, 222 S.E.2d 207. We quote the facts and the ruling in that case, emphasizing the language relied upon by the appellant. "Jimmy Clayton Ben......
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Driggers v. State
...burglary has been rejected by Selph v. State, 142 Ga.App. 26, 28-29, 234 S.E.2d 831, which disapproved the language of Bennett v. State, 136 Ga.App. 806, 222 S.E.2d 207. See Wells v. State, 151 Ga.App. 416(1), 260 S.E.2d 374 [overruled as to division 7 by Copeland v. State, 160 Ga.App. 786,......
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Wortham v. State
...Selph v. State, 142 Ga.App. 26, 29, 234 S.E.2d 831. We expressly reject defendant's suggestion that we revive Bennett v. State, 136 Ga.App. 806, 222 S.E.2d 207, the reasoning of which we disapproved in Selph v. State, 142 Ga.App. 26, 243 S.E.2d 831, supra. After careful review of the entire......