CATES, Presiding Judge.
First degree burglary: sentence, ten years.
We are compelled to reverse because upon a consideration of the entire evidence the proof failed to show that the averred breaking and entering took place in the
Mrs. Moore (the housewife) testified that when she got up to go see who was at the door, it was dark and there was no light on in the house (R. 11). Yet she said that she saw the form of a hand inside the door (R. 11). On being questioned about the condition of the morning, Mrs. Moore testified that it was just beginning to get light outside (R. 12), but that it was still dark—just the break of day.
Mr. Moore testified that he looked at the clock at the time of the burglary, and that it was "about ten minutes till five." (R. 15) When he looked outside he saw a man running away from the house, apparently seeing him clearly enough to determine that he was black. (R. 15)
Two officers testified that it was just beginning to get light at the time of the incident. (R. 26, 30)
The National Weather Service at Montgomery says that the sun rose on June 24, 1973, at 5:40 A.M., and at the Montgomery airport weather conditions at 4:55 A.M. revealed high, then, scattered clouds.
At Common Law the admeasurement of night was that the darkness is such that one cannot discern a man's face.
This witness's then husband testified he saw a black man run across the front lawn.
In Waters v. State, 53 Ga. 567, it is said in part:
Undoubtedly it was here incumbent for a first degree burglary conviction on the State under Simmons (fn. 1, supra) to prove beyond a reasonable doubt that there was not enough natural light to discern a man's face.
Under the instant record it was error for the trial judge to refuse the affirmative charges as to first degree burglary. Indeed,
The judgment below is reversed and the cause remanded for trial de novo.
Reversed and remanded.
All the Judges concur.