Cook v. State , 63 Ga. App. 358 ( 1940 )

Where one enters into the dwelling of another, with the intent to commit a felony or larceny, and the entering is accomplished by climbing through an open window, the mere pushing aside of the window curtains does not amount to a "breaking" within the meaning of the statute (Code of 1933, § 26-2401) defining the offense of burglary.

DECIDED OCTOBER 11, 1940. The defendant was convicted of burglary. Two essential elements of that offense are the breaking into and the entering of the house. The evidence in this case showed an entering, but failed to show a breaking. It is contended by the solicitor-general, that, though the defendant entered the house by coming in through an open window, the evidence showed that he "pushed aside" the window curtains, and that said act amounted to a breaking. We can not agree to that contention, and the prosecution has failed to cite any authority that supports it. See Rex v. Lawrence, 19 English Common Law Reports, 490; Lockhart v. State, 3 Ga. App. 480 (2) (60 S.E. 215); Slappey v. State, 50 Ga. App. 17 (176 S.E. 908); Bunts v. State, 50 Ga. App. 71 (176 S.E. 910). The cases cited in the brief of the solicitor-general are differentiated by their facts from this case. Furthermore, the identification of the accused as the alleged burglar was not positive, but was uncertain and unsatisfactory. Justice requires another hearing of the case.

Judgment reversed. MacIntyre and Gardner, JJ., concur.