24 Ga. App. 26 | Ga. Ct. App. | 1919
1. Plaintiff in error was convicted of burglary. 'In White v. State, 51 Ga. 285, the headnote is as follows: “If one enter a house with intent to commit a felony, but the entering is through an open door without any breaking, actual or constructive, the offense is not burglary; nor, under our Code, § 4386 [§ 146 of the Penal Code of 1910], is it a sufficient ‘breaking and entering into,’ that having entered with intent to commit a felony, he unbolts a door to get out.” The prosecutor in the instant case swore: “Some one went in my store when I was gone to supper; they went in through the window of my store, where a glass 12 by 16 was broken out 4 feet from the door, or he slipped in the store before I closed up and went to supper.” Applying the above-stated rule of law to the evidence just quoted, it will be readily seen that a verdict for burglary was unauthorized, and is without evidence to support it. See also Williams v. State, 52 Ga. 581; Strickland v. State, 12 Ga. App. 640 (3) (70 S. E. 1070).
Judgment reversed.
