Ealey v. State

Full title: EALEY v. THE STATE

Court: Court of Appeals of Georgia

Date published: Sep 30, 1975

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

221 S.E.2d 50

Opinion

51031.

SUBMITTED SEPTEMBER 17, 1975.

DECIDED SEPTEMBER 30, 1975. REHEARING DENIED OCTOBER 23, 1975.

Simple assault; burglary. Richmond Superior Court. Before Judge Fulcher.

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.

SUBMITTED SEPTEMBER 16, 1975 — DECIDED SEPTEMBER 22, 1975 — REHEARING DENIED OCTOBER 23, 1975.