Brooks v. State

Court of Appeals of Georgia

Brooks v. State

246 S.E.2d 506, 146 Ga. App. 519

CourtCourt of Appeals of Georgia

DecidedJuly 3, 1978

Docket55867, 55868

StatusPublished

Cited by3 cases

This text of 246 S.E.2d 506 (Brooks v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brooks v. State, 246 S.E.2d 506, 146 Ga. App. 519 (Ga. Ct. App. 1978).

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Opinion

Smith, Judge.

Appellants were tried jointly and convicted of burglary. Since the trial court erroneously omitted instruction on the intent element of burglary, we must reverse the convictions.

1. The trial court charged the following definition of burglary:" [T]he law of the State of Georgia says that a person commits burglary when and without authority he enters the building of another.” That charge constitutes reversible error as it omits the necessary stipulation that the person must have entered the building of another "with the intent to commit a felony or theft therein.” Ga. L. 1968, pp. 1249, 1287 (Code Ann. § 26-1601). See Tyler v. State, 89 Ga. App. 535 (2) (80 SE2d 78) (1954).

2. Appellant Graham contends the trial court erred in disallowing his questioning of a witness as to what Graham had said during a conversation with two others. We find no merit in the enumerations of error dealing with that contention because appellant Graham expressly offered the witness’ testimony not "for the purpose of proof as [to] the truth of the matter but simply [to show] that this conversation took place,” and Graham was permitted to show that the conversation occurred.

3. The remaining enumerations of error are either meritless or present matters which will not occur on retrial.

Judgment reversed,

Deen, P. J., and Banke, J., concur.

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Smith, Judge.

Appellants were tried jointly and convicted of burglary. Since the trial court erroneously omitted instruction on the intent element of burglary, we must reverse the convictions.

1. The trial court charged the following definition of burglary:" [T]he law of the State of Georgia says that a person commits burglary when and without authority he enters the building of another.” That charge constitutes reversible error as it omits the necessary stipulation that the person must have entered the building of another "with the intent to commit a felony or theft therein.” Ga. L. 1968, pp. 1249, 1287 (Code Ann. § 26-1601). See Tyler v. State, 89 Ga. App. 535 (2) (80 SE2d 78) (1954).

2. Appellant Graham contends the trial court erred in disallowing his questioning of a witness as to what Graham had said during a conversation with two others. We find no merit in the enumerations of error dealing with that contention because appellant Graham expressly offered the witness’ testimony not "for the purpose of proof as [to] the truth of the matter but simply [to show] that this conversation took place,” and Graham was permitted to show that the conversation occurred.

3. The remaining enumerations of error are either meritless or present matters which will not occur on retrial.

Judgment reversed,

Deen, P. J., and Banke, J., concur.

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246 S.E.2d 506, 146 Ga. App. 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-state-gactapp-1978.

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