Massey v. State , 141 Ga. App. 557 ( 1977 )

141 Ga. App. 557 (1977) 234 S.E.2d 144

MASSEY
v.
THE STATE.

53389.

Court of Appeals of Georgia.

Submitted February 3, 1977. Decided March 10, 1977.

Frank G. Smith, Alton T. Milam, for appellant.

George W. Darden, District Attorney, Joseph L. Chambers, Assistant District Attorney, for appellee.

QUILLIAN, Presiding Judge.

The defendant was indicted for burglary, tried and then convicted for a criminal attempt to commit burglary. Because of his conviction for a prior felony he was sentenced to 10 years. See Code Ann. § 27-2511 (Ga. L. 1953, Nov. Sess., pp. 289, 290; Ga. L. 1974, pp. 352, 355). His appeal to this court followed. Held:

1. The facts reveal that on December 29, 1975, the defendant was caught and arrested after having broken the left front vent window of a Volkswagen automobile. The appellant contended that he could not be convicted for an attempt to commit burglary since an automobile per se can not be the subject of a burglary. We agree with the appellant's contention.

The statute reads: "A person commits burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another..." Criminal Code of Ga. § 26-1601 (Ga. L. 1968, pp. 1249, 1287).

The clear intent of this statute is that for a person to be guilty of burglary of a vehicle such vehicle must be designed for use as a dwelling.

The holding in Hayes v. State, 125 Ga. App. 55 (1) (186 SE2d 435), which is contrary to that which is stated above is hereby overruled.

It should be noted that from July 1, 1976 hence, entry of a vehicle with intent to commit a theft or felony is punishable under the provisions of Criminal Code of Ga. § 26-1813.1 (Ga. L. 1976, pp. 186, 187, effective July 1, 1976).

The defendant's conviction of attempted burglary was erroneous and must be reversed with direction that a new trial be granted.

2. The remaining enumerations of error are either without merit or are unlikely to recur.

Judgment reversed. Bell, C. J., Deen, P. J., Webb, Marshall, McMurray, Smith and Shulman, JJ., concur.