Cook v. State, 28335.

• Decision Date: 11 October 1940
• Docket Number: No. 28335.,28335.
• Citation: 11 S.E.2d 217
• Parties: COOK. v. STATE.
• Court: Georgia Court of Appeals

11 S.E.2d 217

COOK.

v.STATE.

No. 28335.

Court of Appeals of Georgia, Division No. 1.

Oct. 11, 1940.

Syllabus by the Court.

Where one enters into the dwelling of another, with the intent to commit a felony or larceny, and the entering is accomplished by climbing through an open window, the mere pushing aside of the window curtains does not amount to a "breaking" within the meaning of the statute (now embodied in section 26-2401 of the Code of 1933) defining the offense of burglary.

Error from Superior Court, De Kalb County; James C. Davis, Judge.

George Cook was convicted of burglary, and he brings error.

Reversed.

Geo. T. Manley and J. B. McCurdy, both of Atlanta, for plaintiff in error.

Roy Leathers, Sol. Gen., of Decatur, for defendant in error.

BROYLES, Chief Judge.

The defendant was convicted of the offense of burglary. Two essential elements of that offense are the breaking into and the entering of the house. The evidence in this case showed an entering, but failed to show a breaking. It is contended by the solicitor-general that, though the defendant entered the house by coming in through an open window, the evidence showed that he "pushed aside" the window curtains, and that said act amounted to a breaking. We can not agree with that contention, and the prosecution has failed to cite any authority that supports it. See, in this connection, Rex v. Lawrence, 19 English Common Law Reports 490; Lock-hart v. State, 3 Ga.App. 480(2), 60 S.E. 218; Slappey v. State, 50 Ga.App. 17, 176 S.E. 908; Bunts v. State, 50 Ga.App. 71, 176 S.E. 910. The cases cited in the brief of the solicitor-general are differentiated by their facts from this case. Furthermore, the identification of the accused as the alleged burglar was not positive, but was uncertain and unsatisfactory. Justice requires another hearing of the case.

Judgment reversed.

MacINTYRE and GARDNER, JJ., concur.