Wood v. State , 46 Ga. 322 ( 1872 )

McCay, Judge.

The crime of burglary consists in breaking, etc., with intent to commit a felony. The intent is a material and necessary part of the crime. Breaking into a house is a mertrespass. Stealing from a house is larceny from the house. But to make the offense of burglary there must be a breaking with intent to cofnmit a felony, (now, or larceny.) The crime is complete, though no felony be committed. If the intent is material it is nécessary to allege it. It is a prime ingredient in the offense, and an indictment fails to charge the offense of burglary unless the intent of the breaking, etc., be set forth. We know no authority for demanding a verdict on a bad indictment. Under our law the jury find their verdict from their own judgment, and not by direction from the Judge. We think, too, the practice is a bad one. Perhaps, on a new indictment, the Court might hold the first indictment good, and an acquittal on it a bar. Under our practice the motion for a new trial generally covers any ground that would be good in arrest of judgment. At least it has long been the practice to include in a motion for new trial such exceptions as this, and we will not disturb the practice, though strictly a motion in arrest of judgment is the proper mode of getting at such a defect as this, since if the indictment is bad, a new trial cannot be had upon it.

Judgment reversed.