Buntain v. State

Willson, Judge.

1. Motions to quash the indictment and in arrest of judgment because of insufficient indictment were properly overruled. It is alleged in the indictment that the burr glory was by force. It was therefore not essential to allege that the entry into the car was without the consent of the owner or occupant. (Sullivan v. The State, 13 Texas Ct. App., 462; Summers v. The State, 9 Texas Ct. App., 396; State v. Williams, 41 Texas, 98.) A forcible entry being alleged, supplies the place of an allegation of non-consent. We think the allegation of the ownership of the car, and the description of the car, are also sufficient.

2. We aré of the opinion that the court did not err in admitting, and in refusing to exclude, the testimony of the witness Ramsay as to the statements made to him by defendant while confined in jail, concerning the place where the chain might be found. Defendant stated that the chain was in a mattress in the house of Jennie McKinney. It is true that the chain was not found in the exact place stated by him—that is, in the mattress— but it was found in Jennie McKinney’s house, secreted in the wall of the house. It was the statement of the defendant as to the whereabouts of the chain, that caused the house of Jennie McKinney to be searched, and it was this search that led to the recovery of the chain. While the statement of the defendant was not found to be precisely true as to the exact place where the chain was secreted, still it proved to be substantially true, the chain being found in the same house with the mattress referred to. We think this was sufficient to meet the requirements of the statute. (Code Crim. Proc., Art. 750; Davis v. The State, 8 Texas Ct. App., 510, and authorities there cited.)

3. We are unable to perceive any material objection to the exhibition in the presence of the jury, by the county attorney, of the watch and chain, and his remarks in connection with such exhibition. It had already been proved that the watch was worth three hundred dollars, and that the chain was worth seventy-five dollars. It is not at all probable that a view of the property by the jury would, to any extent, influence their finding, or in any manner operate to the prejudice of the defendant.

4. It is charged in the indictment that the breaking and entering the car was by force. In his charge to the jury the learned judge said: “The offense of burglary is constituted by entering a house by force, threats or fraud, at night, or in like manner by entering a house during the day and remaining concealed therein until night, with intent, in either case, of committing felony or the crime of theft. The entry into a house spoken of above includes every kind of entry but one made by the free consent of the occupant, or of one authorized to give such consent.” This charge is in the precise words of the statute. (Penal Code, Arts. 704-706.) It was excepted to by the defendant, at the time it was given, because it did not conform to the offense as charged in the indictment; that is, a burglary by force alone, but included a breaking and entry by other means than force, as well as one by force.

We think the exception to the charge is well grounded. There are three modes by which a burglary may be committed: First, by force; second, by threats; tjiird, by fraud. (Speiden v. The State, 3 Texas Ct. App., 156.) This indictment alleges but one of those modes, a burglary by force. It was therefore essential to confine the evidence to this mode alone, and also to instruct the jury with reference only to a burglary by force. In Sullivan v. The State, 13 Texas Court of Appeals, 462, this court said: “While it is true that the pleader can allege an entry by force, threats or fraud, or only one of the means of entrance, the State is confined to those alleged; and when of but one, to this one; and no evidence can be legally introduced to prove that which is not alleged. This rule is not confined to the introduction of the evidence, but extends to and controls the charge of the court. The charge must not depart from the allegation, though ever so much evidence be admitted to prove an offense, or that an offense has been committed in a certain way. If the offense is not charged, or is not charged to have been committed in such manner, though supported by evidence, the court must not instruct the jury upon such offense, or upon the offense committed in such manner.”

Opinion delivered March 5, 1884.

'Again in Weeks v. The State, 13 Texas Court of Appeals, 466, where the indictment charged a burglary by force, it was said: “ The indictment selects force. To this the charge must be confined, let the evidence be what it may.” The learned judge should have applied the law directly and affirmatively to the facts of the particular case before him, confining his instructions within the allegations of the indictment. It is very probable, wé think, that this erroneous charge did not influence the verdict of the jury. But, it having been excepted to at the time, we cannot inquire as to its effect. In such case we have no discretion, but must set aside the conviction. (Code Crim. Proc., Art. 685; Mace v. The State, 9 Texas Ct. App., 110.)

5. But, had there been no error in the charge of the court, we would nevertheless reverse the judgment because, in our opinion, the evidence is not sufficient to support the verdict of the jury. Our views upon this subject will be found in the case of Buntain v. The State, this day decided by us, and which is a companion case to this, the evidence in both cases being identically the same.

Because of the error we have mentioned in the charge of the court, and because the verdict is not supported by the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.