Houston v. State , 38 Ga. 165 ( 1868 )

Warner, J.

The only question made in this record is, whether the evidence of the possession of the store-house, alleged to have been broken and entered, was sufficient at the trial, without the production of the written lease. The store-house was charged, in the indictment, to be the property of Uriel B. Wilkinson and Benjamin J. Wilson. The evidence was, that they were in possession of the store-house at the time of the burglary, under a written deed of lease. It was objected that the witness could not prove that fact by parol, but that the written deed of lease must be produced. The Court overruled the objections, which is now assigned for error here. Burglary is defined bythe Code lo be “ the breaking and entering into the dwelling, mansion or store-house, 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.” To sustain the allegation in the indictment, all that was necessary to prove at the trial, as to ownership of the store-house, was, that Wilkinson & Wilson occupied and had control of the premises at the time of the alleged burglary; that they were in the lawful occupancy of the same as tenants, or otherwise. Roscoe’s Crirn. Evidence, 275. Their lawful occupancy of the store-house at the time alleged in the indictment, was the fact to be established at the trial. In our judgment, that distinct fact was sufficiently proved without the production of the written lease. The question was, not whether the tenants were n the lawful possession of the stove-house as against the landlord, or other persons claiming title thereto, but the question was, whether the tenants were in the lawful possession and occupancy of the store-house as against burglars, who, n violation of law, broke and entered the same, with intent to commit a felony or larceny ; whether the tenants had the lawful possession of the store-house at the time of the burglary, under a parol or written lease, was not material, the faet that they had such possession at the time of the alleged burglary by the defendant was sufficient, without the production of their loritten evidence of title, to sustain the allegation in the indictment.

Let the judgment of the Court below be affirmed.