White v. State , 51 Ga. 285 ( 1874 )

McCay, Judge.

There was absolutely no proof of any breaking and entering into in this case, and to sustain the conviction the charge of the judge must be right. Either breaking out means also breaking into, or the statute of Anne, making “entering with intent to commit a felony and breaking out, burglary,” is of force in this state. Ever since our first Code, (1833,) it has been the uniform understanding that we had no crimes in this State save such as were defined and punished in the Code. The Code of 1833 defined burglary to be the breaking and entering into, etc., and this definition has been reiterated in each of our Codes, and in each of the many acts we have passed modifying and extending the crime of burglary. Had it been the legislative will that the statute of Anne should remain of force, or that the words “ breaking and entering into” should be subject to the construction insisted on, we think the failure to express it in some of the Codes, or in some of the acts, of which we have had many, modifying and extending the crime of burglary, is inexplicable. "We are driven by our convictions, therefore, to the conclusion that Judge Pottle went too far in holding that the statute of Anne alluded to was of force in Georgia, or that the words “'breaking and entering into” may be construed to mean entering into and breaking out. That criminal laws must be construed strictly is universally admitted.

Our statute defines burglary. We go to the common law to get the meaning of the words used, as, for instance, that raising a window or opening a closed door is breaking, and that entering does not require that the whole body go in: But to say that where the words used are “breaking and entering into,” this may mean entering into and breaking out, because by the statute of Anne this was also made burglary, is pushing the admitted right to go to the common law for the meaning of words to an unwarranted extent. It required a statute in England to do this; our statute uses the common law words as they stood before the statute of Anne, and we think they are to be taken to mean what their plain language imports.

We do not go into the evidence, except upon this one point of breaking into. We will only say that if the prisoner’s confession be simply the reply of the prisoner to the magistrate, or to his amicus aurice, as to whether he was guilty or not, that it ought not to be used against him. If a formal plea of guilty may be withdrawn, and a pica of not guilty substituted, it would seem to follow that if withdrawn and a plea of not guilty put in, the plea of guilty simply goes for nothing. The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty.

Judgment reversed.