Blankenship v. State

181 S.E.2d 544, 123 Ga. App. 496, 1971 Ga. App. LEXIS 1278

Opinion

Quhlian, Judge.

The defendant was indicted and convicted of burglary. He filed a motion for new trial which was overruled and the case is here on appeal. Held:

The trial judge instructed the jury: "Ladies and gentlemen, our law provides a person commits burglary when, without authority and with intent to commit a felony or theft therein he enters or remains within the dwelling house of another.” This charge is taken from the Criminal Code of Georgia §26-1601 (Ga. L. 1968, pp. 1249, 1287; Code Ann. §26-1601), which did not become effective until July 1, 1969. The alleged burglary took place on November 1, 1967. The 1968 Act repealed Code § 26-2401 and removed the element of breaking from the crime. Thus, the trial judge should have charged the elements of bur glary as defined by Code § 26-2401 which was in effect at the time the alleged burglary was committed. The Criminal Code of Georgia § 26-103 (Ga. L. 1968, pp. 1249, 1260; Code Ann. § 26-103); Ponder v. State, 121 Ga. App. 788, 789 (175 SE2d 55).

Submitted March 3, 1971 Decided March 19, 1971. Hardaway Young, III, for appellant.

Judgment reversed.

Jordan, P. J., and Evans, J., concur.