Hayes v. State , 193 Ga. App. 33 ( 1989 )

Banke, Presiding Judge,

dissenting.

In Hampton v. State, 145 Ga. App. 642 (244 SE2d 594) (1978), this court concluded that an “entry” was not shown by evidence that the appellant and an accomplice had damaged the back door to a building in an attempt to force it open and had broken an adjacent window. The court held that under such evidence the appellant could not be found guilty of burglary but only of criminal attempt to commit burglary. Accord Battle v. State, 178 Ga. App. 655 (1) (344 SE2d 477) (1986) (where a conviction of attempted burglary was upheld based on evidence that the appellant had been observed using a crowbar in repeated attempts to gain entry to the premises, that three locks had been torn from the doors, and that one door had been cr^ckod)

Decided September 5, 1989 Rehearing denied September 26, 1989 J. M. Raffauf, John D. McCord III, for appellant. Robert E. Wilson, District Attorney, Barbara B. Conroy, Eleni A. Pryles, Fran Shoenthal, Assistant District Attorneys, for appellee.

In Mullinnix v. State, 177 Ga. App. 168, 169 (338 SE2d 752) (1985), it was held that “insertion of an instrument through a hole in the door and removal with the instrument or hand of an alarm string” constituted a “breaking of the plane” and thus an “entry” within the contemplation of OCGA § 16-7-1, so as to support a conviction of burglary. The facts of the present case would appear to more closely resemble those in Hampton than those in Mullinnix, in that there was no showing that the appellant in the present case passed any object or part of his body through the plane of the structure. Thus, inasmuch as the majority has sought neither to overrule Hampton nor, in my opinion, to distinguish that case from this one in any satisfactory manner, I am constrained to dissent to the affirmance of the appellant’s conviction.