The motion for rehearing is predicated on a proposition not discussed in our original opinion. It is based on the sole point that under the court's charge the evidence is insufficient to support the verdict.
The indictment contained two counts. The first expressly charged that the burglary was committed in the nighttime; the second alleged that by force, threats and fraud appellant burglariously and fraudulently broke and entered the house in question. By an unbroken line of authorities it is held that the second count was sufficient to charge either a daytime or a nighttime burglary. Carr v. State, 19 Texas App., 635; and other *Page 44 authorities cited in section 2327, Branch's Ann. Tex. P. C. The court submitted a "daytime" burglary only, properly defining "daytime" as being any time of the twenty-four hours from thirty minutes before sun rise until thirty minutes after sunset (article 1396, P. C.), and required the jury to believe from the evidence beyond a reasonable doubt that the house was entered by force in the day time. It is claimed in the motion for rehearing that no evidence is in the record showing said burglarly occurred in the day time. Appellant refers to the testimony given by the accomplice witness as follows: "We didnot walk in there in broad open daylight. It was just aboutdusk dark, the sun had gone down. The sun had been down, I guess, about forty minutes." If there were no evidence in the record other than that quoted which throws light upon the time the burglary was committed the point now urged by appellant would be troublesome. According to the owner's testimony, two doors were removed from the inside of the house, as were also the two bath tubs. The owner also testified that she examined the house and found that it was entered from the back; that the back door was broken open. Silas testified that the first he knew about the house was when he met appellant and Bridges; that they had two doors already on a wagon, and told witness about the bath tubs, and that they, — witness, appellant, Bridges and Hubbard, — decided to get the tubs; that witness and Hubbard walked and appellant and Bridges went in the wagon; that witness and Hubbard got to the house first and that witness opened the front door and walked in. Silas said he knew nothing about when the doors were taken and had nothing to do with getting them. The time spoken of by Silas, as being forty minutes after sun down, referred to the time when he went to the house to get the bath tubs. The evidence shows that the house had been burglariously entered before that time and the doors taken. This, we think, supports the finding of the jury of a daytime burglary, as submitted by the court.
The motion for rehearing is overruled.
Overruled.