Blankenship v. State

Full title: BLANKENSHIP v. THE STATE

Court: Court of Appeals of Georgia

Date published: Mar 19, 1971

181 S.E.2d 544 (Ga. Ct. App. 1971)

181 S.E.2d 544

Opinion

46044.

SUBMITTED MARCH 3, 1971.

DECIDED MARCH 19, 1971.

Burglary. Coweta Superior Court. Before Judge Knight.

Hardaway Young, III, for appellant.

QUILLIAN, Judge.

The defendant was indicted and convicted of burglary. He filed a motion for new trial which was overruled and the case is here on appeal. Held:

The trial judge instructed the jury: "Ladies and gentlemen, our law provides a person commits burglary when, without authority and with intent to commit a felony or theft therein he enters or remains within the dwelling house of another." This charge is taken from the Criminal Code of Georgia § 26-1601 (Ga. L. 1968, pp. 1249, 1287; Code Ann. § 26-1601), which did not become effective until July 1, 1969. The alleged burglary took place on November 1, 1967. The 1968 Act repealed Code § 26-2401 and removed the element of breaking from the crime. Thus, the trial judge should have charged the elements of burglary as defined by Code § 26-2401 which was in effect at the time the alleged burglary was committed. The Criminal Code of Georgia § 26-103 (Ga. L. 1968, pp. 1249, 1260; Code Ann. § 26-103); Ponder v. State, 121 Ga. App. 788, 789 ( 175 S.E.2d 55).

Judgment reversed. Jordan, P. J., and Evans, J., concur.

SUBMITTED MARCH 3, 1971 — DECIDED MARCH 19, 1971.