Gentry v. State, 33443
| Decision Date | 15 February 1951 |
| Docket Number | No. 2,No. 33443,33443,2 |
| Citation | 63 S.E.2d 611,83 Ga.App. 330 |
| Parties | GENTRY v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Breaking and entering are essential elements to the offense of burglary. Where the State relies on circumstantial evidence alone to show such breaking and entering, such evidence must be sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused. Accordingly, where it appears the doors of a dwelling house were closed, but not locked, and the evidence is entirely silent as to whether the windows were open or closed, such evidence is not sufficient to show a breaking to the exclusion of every other reasonable hypothesis.
Paul Gentry was indicted, tried and convicted in the Superior Court of Gordon County for the offense of burglary. The prosecutor testified that he and his wife left the house on Saturday night, September 3, 1949, at about 8:00 p. m.; that the house had a front and back door; that these doors were not locked but that both were closed; that the back outside door as well as the back screen door had springs which caused them to shut tight; that they went out the back door; that they returned at 10:00 p. m., went in the back door, and found the house disarranged and certain articles missing including a revolver. The revolver was found by the authorities in the house of Robert Lanier. It was identified by the prosecutor and also by the serial number which the prosecutor had previously arranged to have placed on a record kept for that purpose. Robert Lanier identified the revolver as the one he had bought from the defendant on Monday, the day before it was recovered, and testified that the defendant had it in his possession and stated to the witness that he owed him $10.00 and would sell it for the debt and an additional $15.00, and that he stated to the witness at that time that he had gotten it from a clored man the day before. The evidence established that no marks on either doors or windows or elsewhere on the house were found following the alleged burglary. The defendant made a statement in his own behalf to the effect that on Sunday evening he had met two negroes who asked him where they could get some whisky. They then offered to sell him the pistol in question for $25.00, but the defendant offered them $20.00 which they accepted, and that the following day he sold it to Lanier for $25.00.
A motion for a new trial on the general grounds was overruled by the court, and to this judgment the defendant excepts.
James B. Langford, Calhoun, for plaintiff in error.
Warren Akin, Sol. Gen., Cartersville, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
The motion for the new trial is on the general grounds only, and it is contended by counsel for the defendant that although the recent possession of the revolver by the defendant unaccounted for by him to the satisfaction of the jury might be sufficient to authorize the conviction of the defendant for some crime, he could only be guilty of larceny from the house and not burglary because it was nowhere shown that there had been a breaking and entering of the dwelling house within the meaning of the law relating to...
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Almond v. State, 47720
...offense of burglary. Prior to the new Code it was necessary to show a breaking and entering on the part of the defendant (Gentry v. State, 83 Ga.App. 330, 63 S.E.2d 611), while the new Code no longer contains the requirement of breaking. Bridges v. State, 123 Ga.App. 157, 160, 179 S.E.2d 68......
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Yawn v. State
...such evidence must be sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused, Gentry v. State, 83 Ga.App. 330, 63 S.E.2d 611; Mosley v. State, 49 Ga.App. 147, 174 S.E. 543; Slappey v. State, 50 Ga.App. 17, 176 S.E. 908, and, where, upon the trial of on......
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Cowart v. State, 35733
...the conviction of the defendant. It is contended that the evidence as to a breaking is not sufficient under the rule in Gentry v. State, 83 Ga.App. 330, 63 S.E.2d 611, and similar cases, to the effect that, where there is no external evidence of a breaking and entering, the testimony must u......
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