7 S.E.2d 212 | Ga. Ct. App. | 1940
The word "storehouse" as used in Code, § 26-2401, does not have the broad meaning of "storage house," — a place where goods are stored; but is a place where goods are stored or kept for sale, whether at wholesale or retail, a "shop," or a "store." A mere storage house, which is not also a place of business, such as a crib, a smokehouse, or a cottonseed house, is not such a house as may be burglarized unless it is also within the curtilage of a dwelling or mansion.
According to the State's evidence the house alleged to have been burglarized was a house used as a storage house for certain personal property, — shoes and clothing. It was not a house within the curtilage of a dwelling, neither was it a place of business, nor *659 was it a storehouse "where you sell merchandise or groceries. . . It was a house where these things were put and stored."
The indictment being for burglary and the defendant having been found guilty of burglary, he now contends that the house alleged to have been burglarized was not such a house as is contemplated in (the protection of) the burglary statute, and the conviction of burglary was not therefore warranted by the evidence.
"Burglary is the breaking and entering into the dwelling, mansion, or storehouse, or other place of business of another, where valuable goods, wares, produce, or any other article of value are contained or stored, with intent to commit a felony or larceny." Code, § 26-2401. Plaintiff in error insists that the storehouse indicated was not such a storehouse as is included within the term "storehouse" as used in the section above quoted. The trial judge recognizes the pertinency of the criticism, and devotes most of his order overruling the motion to an able discussion of this question. We can not agree with his conclusion. If the term "storehouse" as used in the statute means a place or house of storage, there can be no question but that the breaking and entering with intent to commit a larceny, as in this case, was a burglary. However, the word "storehouse" in the Code section quoted, is immediately followed by the clause "or other place of business . . where valuable goods . . are contained or stored."
"Burglary is an offense against the habitations of persons. Larceny from the house is an offense relative to property."Williams v. State,
It is clearly seen from these decisions that although cribs, barns, smokehouses, or cottonseed houses are in one sense of the word, storehouses, or storage houses, they are not included under the term "storehouse" as used in the statute. In McElreath v.State,
In Martin v. State,
We think it apparent that the word "storehouse" as used in the Code section relative to burglary, and as applied by the courts, does not have the larger meaning of a storage house, but is used and applied in its common and accepted meaning to a house where merchandise is sold. Webster defines it as "Any place where goods are kept for sale, whether by wholesale or retail; a shop;" although it is also defined as a building for storing goods. It is restricted in this section to a house where goods are kept for sale, at wholesale *661 or retail, and not to a storage house alone; otherwise the cases which hold that barns, or cribs, or smokehouses, or warehouses, although they are storage houses, are not storehouses as meant by the Code section, can not be reconciled.
The defendant was convicted of burglary, and not of larceny from the house. A verdict of larceny from the house, which was also charged in the indictment, would have been supported by the evidence; but, as was said in the Hutchins case, supra, "There is such a wide difference between the penalty which may be inflicted in a case of burglary and that allowable in cases of larceny that the defendant's right to be tried for the offense of which he is really guilty affords an unanswerable reason for the grant of a new trial."
"Although the accusation and facts of a case may make a case of burglary, yet if they also make a case of larceny from the house, the defendant may be convicted of the latter offense."Barlow v. State,
Judgment reversed; Broyles, C. J., and MacIntyre, J.,concur.