Mosley v. State, 23863
| Decision Date | 09 May 1934 |
| Docket Number | No. 23863,23863 |
| Parties | MOSLEY . v. STATE. |
| Court | Georgia Court of Appeals |
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Syllabus by the Court.
Proof of a "breaking and entering" is an essential element to the conviction of the crime of burglary. The evidence in this case was insufficient on this point, and the trial judge, therefore, erred in overruling the defendant's motion for a new trial.
Error from Superior Court, Gwinnett County; W. W. Stark, Judge.
Andrew Mosley was convicted of burglary, and he brings error.
Reversed.
W. L. Nix, of Lawrenceville, for plaintiff in error.
Clifford Pratt, Sol. Gen., of Winder, for the State.
We are satisfied that the evidence against the accused, charged with burglary, was insufficient to support the verdict of guilty, and that the trial judge erred in not granting the motion for a new trial upon the general grounds. The defendant was indicted for burglary, in that he did break and enter the house of G. L. Sikes, with intent to commit a larceny therein. In a prosecution for burglary it is essential that there be proof of a breaking, then an entering, and that the house broken was one of the character upon which burglary may be committed. Without sufficient proof of a breaking, the crime is not made out. The breaking may be actual or constructive, but it must appear in one form or the other. See, in this connection, Tremble v. State, 24 Ga. App. 26, 99 S. E. 544; Strickland v. State, 12 Ga. App. 640, 77 S. E. 1070; Lockhart v. State, 3 Ga. App 480, 60 S. E. 215; Kent v. State, 84 Ga. 438, 11 S. E. 355, 20 Am. St. Rep. 370; Colbert v. State, 91 Ga. 705, 17 S. E. 840; Lanier v. State, 76 Ga. 304; White v. State, 51 Ga. 286; Grimes v. State, 77 Ga. 762, 4 Am. St. Rep. 112. From the evidence for the state it appears that Mrs. G. L. Sikes left her home in Dacnla before dark for Lawrenceville, which was several miles away, to go to the home of her son-in-law in order tlmt she might meet another daughter, who was to arrive on a train due in Lawrenceville about 9 o'clock. She, in company with her daughter and son-in-law, met the other daughter at the train and immediately thereafter started to her home in Dacula, arriving there some fifteen minutes later. From the evidence it appears that Mrs. Sikes entered the house first, for the reason that she had a key, the door being locked. It appears that after having been in the house for some fifteen minutes, the defendant was discovered under the bed in her daughter's room. He had whisky on his breath. There is an absolute lack of testimony on the part of Mrs. Sikes as to whether the doors and windows of the house were closed when she left some several hours before, nor was there any...
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