Kimbrell v. State, 26567.

• Decision Date: 15 February 1938
• Docket Number: No. 26567.,26567.
• Citation: 195 S.E. 459,57 Ga.App. 296
• Parties: KIMBRELL. v. STATE.
• Court: Georgia Court of Appeals

57 Ga.App. 296

195 S.E. 459

KIMBRELL.

v.STATE.

No. 26567.

Court of Appeals of Georgia,

Division No. 1.

Feb. 15, 1938.

Syllabus by the Court.

Where the indictment alleged burglary, and the charge of the court substantially embraced the rules of law on the issues which the evidence made between the state and the defendant, if the defendant thought the charge was not full enough or clear enough or omitted something that would put his side more fairly before the jury than would the charge given, then the notice of the court should have been called thereto, and, in the absence of an appropriate written request, the defendant cannot now complain.

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

William Kimbrell was convicted of burglary and he brings error.

Affirmed.

B. J. Dantone and James R. Venable, both of Atlanta, for plaintiff in error.

Roy Leathers, Sol. Gen., of Decatur, for the State.

MacINTYRE, Judge.

Kimbrell was convicted of burglary. He moved for a new trial; his motion was overruled, and he excepted.

The real question argued by the plaintiff in error in his brief is that the court's charge on the question of breaking and entering the dwelling house was not sufficiently clear and full as to substantially embrace the issues made by the evidence under the peculiar facts of this case, and, although there was no request so to charge, that the court committed reversible error. With reference to the question of "breaking and entering, " the evidence for the state was as follows: "It was burglarized in October of last year. The premises were entered through a window which was prized open. It was locked. As to what evidence or any marks or indication of the window's having been prized open I found, T found a broken sash lock.' As to whether this house was fully completed or only partially constructed, it was only partially constructed." The court charged the jury, in part, as follows: "Now, gentlemen, the charge in this indictment is that of burglary, and I will give you the definition of burglary. Burglary is the breaking and entering of the dwelling, mansion, storehouse, or other place of business of another, where valuable goods, wares, produce, or other articles of value are contained or stored, with intent to commit either a felony or larceny. Now it is charged in this indictment that there was a breaking and entering by these defendants with intent to commit a larceny, and I will give you the definition of larceny. Larceny is the wrongful and fraudulent taking and carrying away by any person of the personal goods of another, with intent to steal the same. Now gentlemen, all of...