Ealey v. State , 136 Ga. App. 292 ( 1975 )

136 Ga. App. 292 (1975) 221 S.E.2d 50

EALEY
v.
THE STATE.

51031.

Court of Appeals of Georgia.

Submitted September 17, 1975. Decided September 30, 1975. Rehearing Denied October 23, 1975.

Harrison, Jolles & Miller, Charles F. Miller, Jr., for appellant.

Richard Allen, District Attorney, for appellee.

BELL, Chief Judge.

Defendant was convicted of simple assault and burglary. The appeal is limited to the contention that the burglary count of the indictment is fatally defective. This count in pertinent part alleged that defendant "did without authority and with intent to commit a felony, did enter the dwelling house of ..." State v. Lockhart, 24 Ga. 420 held that if a burglary indictment fails to specify the felony which the defendant intended to commit, the defect is fatal. This case controls.

As no question is raised as to the conviction and sentence for simple assault we affirm that part of the judgment but reverse as to the conviction and sentence for burglary.

Judgment affirmed in part and reversed in part. Webb and Marshall, JJ., concur.