Appellant was convicted of the burglary of a private residence at night, and his punishment fixed at confinement in the penitentiary for a term of five years; hence this appeal.
Appellant asked a special charge on the force required to constitute *Page 419 a breaking. We think the court in the general charge sufficiently presented this question. The evidence did not specially raise this issue.
Appellant also requested the following special instruction: "Before the jury can convict they must believe beyond a reasonable doubt that at the time defendant entered the house of Walker, he was in such a state of mind that he knew what he was doing and knew the difference between right and wrong, and if you have a reasonable doubt on said matter, you should acquit. This charge was refused, and appellant assigns this as error. The court in the general charge required the jury to believe that appellant had the specific intent to steal in breaking into the house; and in addition gave a charge on drunkenness produced by the recent use of intoxicating liquors, following the law as announced in Evers v. State, 31 Tex.Crim. Rep.. The charge authorized the jury to consider the evidence of temporary insanity only in mitigation of the penalty they should fix to the offense in case they should believe appellant guilty. The doctrine announced in the Evers case seems to be the law in this State, and the charge as given was in accordance therewith. At any rate, we do not believe in this particular case, there was error in the court declining to give the special requested instruction. The judgment is affirmed.
Affirmed.
[Motion for rehearing overruled without written opinion. — Reporter.]