ON MOTION FOR REHEARING.
MORRISON, Judge.At a previous day of this term, we affirmed the judgment herein and held that an entry had been proven and that a burglary had thereby been established. We cited in support of such holding Franco v. State, 42 Tex. 276, and Nash v. State, 20 Tex. C. A. 384.
We have now re-examined the record and have concluded we were in error in such holding.
We re-affirm the holdings in the Franco and Nash cases, but note that in both cases an entry of a part of the body of the burglar was shown to have been made. Such is not the case before us here. It is obvious from the facts here that some of the tools found in the shed, were used to break the glass and pry apart the bars, and that the burglars were arrested before any other entry had been effected.
Since the legislature has created the two separate offenses of burglary and attempt to commit burglary, a clear line of distinction must be drawn between the two.
The question here is what the legislature meant by the clause, “or by the introduction of any instrument for the purpose of taking from the house any personal property, although no part of the body of the offender should be introduced,” when they brought forward the common law into Article 1393, P. C.
In Mason v. State, 100 S. W. 383, we held that where one threw a brick through a show window, and was immediately thereafter arrested before any other entry had been effected, he was guilty of an attempt to commit burglary, and not the crime of burglary itself. We think the facts there are controlling in the case at bar.
*355The instrument in this case at bar was used to break out a window. Such instrument was not introduced for the purpose of taking from the house any personal property.
In order to support the holding in the Mason case, we look to the cases from other jurisdictions and to the common law for further authority. The rule seems to be uniform and, though seemingly technical, is well defined. Section 93, Bishop on Criminal Law, 9th Edition, reads as follows:
“IT IS NOT AN ENTRY — and there is no burglary, if only the tools used for breaking goes in, and no part of the person nor the instrument by which the ulterior felony is to be perpetrated does. Thus, to raise a window by placing the hands outside of it, and then thrust in a bar for forcing open the inside shutter; or to make a hole through a door with a centre-bit, whereby some of the chips fall in, or to loosen the window strip, —is insufficient; because neither the bar nor the centre-bit was to be employed about the ulterior felony.”
The Supreme Court of Alabama, in the early case of Walker v. State, 63 Ala. 49, decided in 1879, had before it a case in which the accused had bored a hole through the floor of a building in which was stored a quantity of shelled corn, causing some of the corn to run into a sack he was holding thereunder. The court held that both, a breaking and an entry had been shown. Though we did not cite the Walker case, we reached the same result in Bass v. State, 126 Tex. Cr. R. 170, 70 S. W. 2d 730. But such are not the facts before us here. In discussing the law, the court in the Walker case cited Rex v. Hughes, 1 Leach 406. In the Hughes case, decided in 1785, the accused had bored a hole through the panel of a door; the point of the centrebit and some of the chips had entered the house, but nothing more. The court there said that when one instrument is employed to break and is without capacity to aid otherwise than by opening a way of entry, and another instrument must be used, or the instrument used in the breaking must be used in some other way or manner to consummate the criminal intent, the intrusion of the instrument is not, of itself, an entry.
We can find no authority which has altered the rule announced in Rex v. Hughes, supra, and can perceive no valid reason for departing therefrom. We therefore hold that facts in the case at bar show an attempt to commit the crime of burglary and not burglary itself.
*356Upon another trial, the state will, no doubt, be able to show that the door to the shed room, was closed prior to the entry, and thereby make out a case of burglary of that building.
For the reasons stated, the motion for rehearing is granted; the judgment of affirmance is set aside; and the judgment is now reversed and the cause remanded.