2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 7 - Damage to and Intrusion Upon Property
Article 1 - Burglary
§ 16-7-1. Burglary

1. As used in this Code section, the term:
   1. "Dwelling" means any building, structure, or portion thereof which is designed or intended for occupancy for residential use.
   2. "Railroad car" shall also include trailers on flatcars, containers on flatcars, trailers on railroad property, or containers on railroad property.
2. A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another. A person who commits the offense of burglary in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years. Upon the second conviction for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than two nor more than 20 years. Upon the third and all subsequent convictions for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than five nor more than 25 years.
3. A person commits the offense of burglary in the second degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant building, structure, railroad car, watercraft, or aircraft. A person who commits the offense of burglary in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. Upon the second and all subsequent convictions for burglary in the second degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than eight years.
4. Upon a fourth and all subsequent convictions for a crime of burglary in any degree, adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld.

(Laws 1833, Cobb's 1851 Digest, p. 790; Ga. L. 1858, p. 98, § 1; Code 1863, §§ 4283, 4285; Ga. L. 1865-66, p. 232, § 2; Ga. L. 1866, p. 151, § 1; Ga. L. 1868, p. 16, § 1; Code 1868, §§ 4320, 4322; Code 1873, §§ 4386, 4388; Ga. L. 1878-79, p. 65, §§ 1, 2; Code 1882, §§ 4386, 4388; Penal Code 1895, §§ 149, 150; Penal Code 1910, §§ 146, 147; Code 1933, §§ 26-2401, 26-2402; Code 1933, § 26-1601, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1977, p. 895, § 1; Ga. L. 1978, p. 236, § 1; Ga. L. 1980, p. 770, § 1; Ga. L. 2012, p. 899, § 3-1/HB 1176; Ga. L. 2017, p. 417, § 1-2/SB 104.)

The 2017 amendment, effective July 1, 2017, deleted "vehicle," following "structure," near the end of the first sentence of subsection (c).

- Entering motor vehicle with intent to commit theft or felony, § 16-8-18.

- Pursuant to Code Section 28-9-5, in 2012, "more than" was substituted for "more that" in the next-to-last sentence of subsection (b).

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

- For article on recidivism and convictions based on nolo contendere pleas, see 13 Ga. L. Rev. 723 (1979). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017).

ANALYSIS

• General Consideration
• Elements of Burglary
• Indictments
• Included Crimes
• Jury Instructions
• Inferences, Sufficiency and Admissibility of Evidence
• Sentencing

OPINIONS OF THE ATTORNEY GENERAL

History of section.

- See 1957 Op. Att'y Gen. p. 80.

RESEARCH REFERENCES

Am. Jur. 2d.

- 13 Am. Jur. 2d, Burglary, § 1 et seq.

- 12A C.J.S., Burglary, § 1 et seq.

- Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.

Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.

Necessity of naming owner of building in indictment or information for burglary, 20 A.L.R. 510; 169 A.L.R. 887.

Opening closed but unlocked door as breaking which will sustain charge of burglary or breaking and entering, 23 A.L.R. 112.

Burglary without breaking, 23 A.L.R. 288.

Necessity of alleging and proving in prosecution for larceny, embezzlement, or receiving stolen property that "owner" of property, if not a natural person, was incorporated or otherwise a legal entity capable of owning property, 88 A.L.R. 485.

Necessity and sufficiency of allegations in indictment or information for burglary as to value of property intended to be stolen which would make its theft a felony, 113 A.L.R. 1269.

Evidence of acquisition or possession of money, source of which is not traced, as admissible against defendant in criminal case, 123 A.L.R. 119; 91 A.L.R.2d 1046.

Admissibility, in prosecution for burglary, of evidence that defendant, after alleged burglary, was in possession of burglarious tools and implements, 143 A.L.R. 1199.

Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes, 24 A.L.R.2d 1247.

Pardon as affecting consideration of earlier conviction in applying habitual criminal statute, 31 A.L.R.2d 1186.

Burglary: outbuildings or the like as part of "dwelling house,", 43 A.L.R.2d 831.

Gambling or lottery paraphernalia as subject of larceny, burglary, or robbery, 51 A.L.R.2d 1396.

Burglary or breaking and entering of motor vehicle, 79 A.L.R.2d 286.

Propriety, under statute enhancing punishment for second or subsequent offense, of restricting new trial to issue of status as habitual criminal, 79 A.L.R.2d 826.

Sufficiency of showing that burglary was committed at night, 82 A.L.R.2d 643.

Stolen money or property as subject of larceny or robbery, 89 A.L.R.2d 1435.

Evidence of acquisition or possession of money, source of which is not traced, as admissible against defendant in criminal case, 91 A.L.R.2d 1046.

Breaking and entering of inner door of building as burglary, 43 A.L.R.3d 1147.

Criminal prosecution based upon breaking into or taking money or goods from vending machine or other coin-operated machine, 45 A.L.R.3d 1286.

What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.

Conviction under Dyer Act (18 U.S.C.S. §§ 2312, 2313) as ground for enhancement of penalty under state habitual criminal statutes, 65 A.L.R.3d 586.

What constitutes "money" within coverage or exclusion of theft or other crime policy, 68 A.L.R.3d 1179.

Entry through partly opened door or window as burglary, 70 A.L.R.3d 881.

Receiver of stolen goods as accomplice of thief for purposes of corroboration, 74 A.L.R.3d 560.

Antagonistic defenses as ground for separate trials of codefendants in criminal case, 82 A.L.R.3d 245.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

Admissibility, weight, and sufficiency of blood-grouping tests in criminal cases, 2 A.L.R.4th 500.

Occupant's absence from residential structure as affecting nature of offense as burglary or breaking and entering, 20 A.L.R.4th 438.

Liability of person furnishing, installing, or servicing burglary or fire alarm system for burglary or fire loss, 37 A.L.R.4th 47.

Maintainability of burglary charge, where entry into building is made with consent, 58 A.L.R.4th 335.

What is "building" or "house" within burglary or breaking and entering statute, 68 A.L.R.4th 425.

Burglary, breaking, or entering of motor vehicle, 72 A.L.R.4th 710.

Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 A.L.R.5th 263.

Minor's entry into home of parent as sufficient to sustain burglary charge, 17 A.L.R.5th 111.

Use of fraud or trick as "constructive breaking" for purpose of burglary or breaking and entering offense, 17 A.L.R.5th 125.

Construction and application of enhanced sentencing provision of Armed Career Criminal Act (ACCA), 18 U.S.C.A. § 924(e) - United States Supreme Court cases, 67 A.L.R. Fed. 2d 1.

Comment note: Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the United States after commission of felony offense, 68 A.L.R. Fed. 2d 55.