25 Ga. App. 306 | Ga. Ct. App. | 1920
1. An indictment for an attempt to commit a crime must aver the intent and the overt act which constitutes the attempt. Wilburn v. State, 22 Ga. App. 614 (97 S. E. 87), and citations.
2. An indictment which charges the offense of an attempt to commit burglary, and which further alleges merely that the accused “ in the county of Fulton and State of Georgia, on the 11th day of January, 1920, with force and arms, did attempt to break and enter the dwelling house of M. J. Sewell, where valuable goods were contained, with intent to- steal, contrary to the laws of said State and the good order, peace and dignity thereof,” is fatally defective in substance, in not alleging any overt act; and the defect is not waived by failure to demur. O’Brien v. State, 109 Ga. 51 (35 S. E. 112); United States v. Ford, 34 Fed. 26; Wilburn v. State, supra.
3. Under the above rulings, the court erred in-overruling the motion in arrest of judgment.
Judgment reversed,