This appeal is from a conviction for burglary. Two grounds were submitted in the motion to quash the indictment: 1. Because the indictment does not allege that the house charged to have been entered was in the county of Walker. 2. It does not allege that the goods and I chattels intended to be stolen (after entry) were in the house al- J leged to have been entered, nor to whom said goods and chattels ' belonged. ¡
The indictment filed in said cause is as follows: “ In the name, and by the authority of the State of Texas of Texas; the grand . jurors in and for Walker county, State of Texas, legally se- 1 lected, drawn, tried, empaneled, sworn and charged at the I May term, A. D. 1882, of the district court of Walker county, , State of Texas, upon their oaths, in said court do present that Edgar Ross, in Walker county, State of Texas, on the tenth day ¡ of May, A. D. 1882, that is to say in the night time of said tenth ¡ of May, A. D. 1882, did by force break and enter the house of J. •' L. Smith, without the consent of said J. L. Smith, and with the . intent to fraudulently take, steal and carry away from the pos-1 session of J. L. Smith and out of said house, goods and chattels of | the value of five dollars, corporeal .personal property belonging' to J. L. Smith, without the consent of J. L. Smith, and with the I intent to deprive said J. L. Smith, the owner of said goods and | chattels, of the value of the same, and to appropriate it to the ! use and benefit of him, said Edgar Ross; against the peace and ; dignity of the State.” !
We think it is apparent that the objections are not well taken.' If in Walker county defendant broke and entered the house of' J. L. Smith,oas is charged, we cannot well see how it was possible for him to do so if the house was not in Walker county. And the same may be said with regard to the allegation respecting the goods and chattels. It might, perhaps, have been better and more specific to have charged that the goods and chattels were in the house, but we are of opinion that the allegations are substantially sufficient as made, and that the court did not err in overruling the motion to quash.
One of the paragraphs of the charge of the court to the jury which is excepted to is as follows: “ It is not necessary that there should be any actual breaking to constitute the offense of burglary, when the entry is in the night time. An entry into a house in the night time, without the consent of the owner, or *559some other person authorized to give consent, with intent to commit a theft, is an entry by force, as meant in the law.”
This charge is erroneous. To constitute burglary, the entry must be by “ force,” “threats,” or “ fraud,” whether committed in the day time or at night. (Penal Code, Art. 704.) This identical question is discussed in Hamilton v. The State, 11 Texas Court of Appeals, 116, and it was held that the definition of “ entry ” in Article 706, making it include in its meaning “ every kind of entry but one made by the free consent of the occupant or of one authorized to give such consent,” did not eliminate from the offense the element of “ force,” nor dispense with the necessity of alleging and proving an entry by “ force.” If the entry is at night, the slightest force to effect it will suffice.
We are of opinion that the evidence is not sufficient to support the verdict and judgment. Clarke, the party from whom Smith got the articles alleged to have been stolen from his mill, was only able to identify one of the articles, viz, “a brass bear, ing,” as an article which he had purchased from the defendant. He states that when he purchased that “brass bearing” from the accused, he, Clarke, asked defendant where he had got it, and that defendant stated that he had found it up near the penitentiary. This statement of the defendant, made at the time he was first found in possession of the stolen property, was altogether natural and reasonable, when considered in connection with the other evidence in this case, and it devolved upon .the State to show that it was false. (Garcia v. The State, 26 Texas, 209; Galloway v. The State, 41 Texas, 289; Johnson v. The State, 12 Texas Ct. App., 385.) This the evidence adduced by the State wholly fails to do.
For the errors indicated, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Opinion delivered June 14, 1884.