Gray v. State
158 Ga. App. 582
Ga. Ct. App.
1981
Check Treatment
Deen, Presiding Judge.

Charles Gray appeals from his conviction of burglary and attempted arson.

1. The trial court did not err in denying his motion for a directed verdict of acquittal. The evidence showed that he was found inside the diner approximately one hour after it closed, that the walls had been soaked with a flammable substance, that the valve from the propane gas outlets had been shut off, that a jug of gasoline was in the sink and a five-gallon can of gasoline was on the floor, appellant had a cigarette lighter in his pocket and also had in his possession packets of chewing gum and headache powders of the type taken from the cash register.

2. This case, however, demands reversal and the grant of a new trial because the trial court failed to charge the jury on mistake of fact which constituted his sole defense. Henderson v. State, 141 Ga. App. 430 (233 SE2d 505) (1977). Appellant claimed that his car broke down and he went into the diner after he saw that the door was open and thought that someone was inside.

As this case must be retried, it is unnecessary to rule upon the *583 remaining enumeration of errors as they are not likely to recur.

Decided May 19, 1981 — William L. Martin III, for appellant. William A. Foster III, District Attorney, for appellee.

Judgment reversed.

Banke and Carley, JJ, concur.