Lee v. State

56 Ga. 477

Opinion

Jackson, Judge.

In this case the defendant was indicted and found guilty, and moved to arrest the judgment on the ground that the bill of indictment did not allege that the Savannah theatre, the place he was charged with breaking into, was a place where valuable goods, wares, produce, or any other article of value, was contained or stored. The indictment alleged that the theatre was the property of Thomas Arkwright and his place of business, and was broken into and entered with intent to commit a larceny. We all think it insufficient. Whether any article of value was in that theatre or not we do not know. If the indictment had alleged that, after entering, the defendant stole therefrom anything of value, it would have been sufficient, in my judgment, for it would then have showed it contained that thing of value. A theatre may or may not have things of value stored or contained in it; if it has, burglary can be committed therein; if it has not, burglary cannot be committed in it. The word theatre does not, ex vi termini, import that it is a place where valuable goods are stored, as I thought in my dissenting opinion in the mill-house case, decided at this term, that a mill-house, especially if corn was alleged to have been stolen from it, did; the word theatre does not import necessarily anything but the stage on which the actors play and the' room in which the acting is done and seen; and as there is no allegation that anything valuable was in this theatre or stolen from it, as iu the case referred to, (there was an allegation that corn was stolen from the mill-house,) I concur with my brethren in this case, and we all think the indictment bad, and that the judgment should be arrested, and it is so ruled.

Judgment reversed.