Cook v. State

11 S.E.2d 217, 63 Ga. App. 358, 1940 Ga. App. LEXIS 95

Opinion

Broyles, C. J.

The defendant was convicted of burglary. Two essential elements of that offense are the breaking into and the entering of the house. The evidence in this case showed an entering, but failed to show a breaking. It is contended by the solicitor-general, that, though the defendant entered the house by coming in through an open window, the evidence showed that he “pushed aside” the window curtains, and that said act amounted to a breaking. We can not agree to that contention, and the prosecution has failed to cite any authority that supports it. See Rex v. Lawrence, 19 English Common Law Reports, 490; Lockhart v. State, 3 Ga. App. 480 (2) (60 S. E. 215); Slappey v. State, 50 Ga. App. 17 (176 S. E. 908); Bunts v. State, 50 Ga. App. 71 (176 S. E. 910). The cases cited in the brief of the solicitor-general are differentiated by their facts from this case. Furthermore, the' identification of the accused as the alleged burglar was not positive, but was uncertain and unsatisfactory. Justice requires another hearing of the case.

Judgment reversed.

MacIntyre and Gardner, JJ., concur.