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QUILLIAN, Presiding Judge.
Burglary. Pierce Superior Court. Before Judge Hodges.
The defendant appeals his conviction for burglary. Held:
OCGA 16-7-1 (Code Ann. 26-1601) provides: "A person commits the offense of 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 other building, railroad car, aircraft, or any room or any part thereof." As is readily apparent there are two essential elements which must be established by the State: 1) lack of authority to enter the dwelling or building; 2) intent to commit a felony or theft. Kent v. State, 128 Ga. App. 132 (1) (195 SE2d 770); Ealey v. State, 139 Ga. App. 604 (2) (229 SE2d 86).
A careful examination of the transcript reveals the evidence was sufficient to sustain a finding of theft by taking which may be a lesser included offense of burglary ( Lockett v. State, 153 Ga. App. 569, 570 (1) (266 SE2d 236); Breland v. Smith, 247 Ga. 690, 692 (2) (279 SE2d 204)), since if found it would constitute proof of the second prerequisite element of burglary. As counsel for the defendant points out the co-owner of the building allegedly burglarized failed to testify regarding any lack of authority on defendant's part to enter the building. However, the officer investigating the crime did testify: "[t]he front door of the warehouse had been pried open . . ."
In view of these decisions we can only hold that the evidence was sufficient to show the defendant's lack of authority to enter the building.
Harry D. Dixon, Jr., District Attorney, Michael D. Devane, Assistant District Attorney, for appellee.
John R. Thigpen, Sr., for appellant.
Thursday May 21 19:55 EDT

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