Conviction for attempt to commit burglary; punishment, two years in the penitentiary.
The record is here without any statement of facts. Appellant moved to quash the indictment. Same alleges that the accused "did by force, etc., attempt to break and enter a house, etc., in this that said Travis did then and there attempt to break open the door of said house." In Jones v. State, 53 Tex. Crim. 470, this court held an indictment good which charged the accused with attempting to burglarize a house "by attempting by force to raise a window" of said house. We see no substantial difference. The Jones case was approved and followed by us in Ash v. State, 93 Tex.Crim. Rep..
It was fully charged in the indictment herein that the attempt to break and enter the house was with intent to commit theft. Whether these allegations were supported by testimony on the trial would depend on the facts, a statement of which appellant seems to have failed to bring forward.
If there was error, as contended by appellant, by the use of the word "felony" in that part of the court's charge wherein the jury were told to convict appellant if they found he attempted to enter the house in question with intent to commit a felony, or the crime of theft as alleged in the first count of the indictment, same was cured and rendered harmless by the verdict of the jury which specifically found appellant guilty "as charged in the first count of the indictment"; it being alleged in said count that appellant attempted to enter said house with intent to commit theft. The judgment and sentence were for guilt of attempting to break with intent to steal.
We can not agree with appellant's complaint of the court's charge upon accomplice testimony which, while in form somewhat different from that ordinarily used, pointedly told the jury that, before they could convict, the testimony of the accomplice, together with the other testimony, must establish beyond a reasonable doubt that appellant was guilty of the offense.
Being unable to agree with any of appellant's contentions, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.