State v. Kennedy

467 S.E.2d 493, 266 Ga. 195, 96 Fulton County D. Rep. 437, 1996 Ga. LEXIS 50

• Court: Supreme Court of Georgia
• Decided: February 5, 1996
• Docket: S95G0392
• Status: Published

Opinions

Hines, Justice.

William Kennedy, Jr., was convicted of burglarizing the home of his mother-in-law and estranged wife. The Court of Appeals reversed the conviction based on our holding in Division 3 of Mitchell v. State, 263 Ga. 129 (429 SE2d 517) (1993). Kennedy v. State, 215 Ga. App. 232 (450 SE2d 252) (1994). We granted the State’s application for writ of certiorari to revisit our holding in Mitchell.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. ...” OCGA § 16-7-1. In Mitchell, the defendant argued that, as a matter of law, he could not have entered the apartment “ ‘without authority’ ” because he and the victim “were either married or lived together.” Mitchell, supra at 130. We held that under the facts in that case, it was error for the trial court not to charge the jury that a finding that the defendant and victim either lived together, or were married, required a verdict of not guilty to the burglary charge. Id. at 131.

In Mitchell, we recognized that marriage is a significant factor in the determination of whether one spouse is authorized, as provided in OCGA § 16-7-1, to enter the separate residence of his or her estranged spouse. However, marriage alone is not an absolute defense to burglary. There are no express marital exemptions nor implicit exclusions in the burglary statute which give a spouse unlimited consent, as a matter of law, to enter the separate residence of his or her estranged spouse. Cf. Warren v. State, 255 Ga. 151 (336 SE2d 221) (1985). An entry into the separate residence of an estranged spouse, without authority and with the intent to commit a felony or theft¹ therein, constitutes burglary. Johnson v. State, 262 Ga. 441 (421 SE2d 70) (1992). Accordingly, we expressly disapprove of any language in Division 3 of Mitchell, supra, which may indicate that, as a matter of law, a married defendant cannot burglarize the separate residence of his or her estranged spouse.

Consequently, because the Court of Appeals was required to apply our holding in Mitchell, which we now disapprove, we must reverse the decision of the Court of Appeals and remand this case to that court to review the evidence in light of our holding.

Judgment reversed and case remanded.

All the Justices concur.

1 The evidence in this case indicates that Kennedy entered the separate residence of his estranged spouse with the intent to retrieve his own clothes and take money from the person of his mother-in-law.

The current Georgia theft statutes do not include the unauthorized taking of the property of one’s spouse or the property owned jointly by the spouses. OCGA § 16-8-1. Accordingly, it has been held that where a married defendant enters the property of his or her estranged spouse, without authority, and with the intent to take property belonging to the estranged spouse, the defendant has not formed the intent to commit theft, and therefore cannot be guilty of burglary. Calloway v. State, 176 Ga. App. 674 (4) (337 SE2d 397) (1985). We are concerned by such a result, and believe it is time the legislature reconsider the propriety of such a marital exemption.