The indictment in this case charged a burglary committed by force in the night time, with intent to commit the crime of theft. “Force” was the only means alleged to effect the burglarious entry. In his charge the learned judge gave to the jury almost literally arts. 704, 706, 707, 708 and 709 of the Penal Code, which embrace not only a burglary by force but also threats and fraud,—in fact the full definition of all kinds of burglary known to our Code. Under the indictment the charge should *601only have submitted the law applicable to a burglary by force, the rule being that the evidence and charge must conform to and should be limited by the specific offense set forth in the indictment. In other words, the charge must set forth the law applicable to the-case, and the case is the offense as stated in the indictment and made by the proofs. (Kouns v. The State, 3 Texas Ct. App., 13; Goode v. The State, 16 Texas Ct. App., 411.) If not erroneous, a charge which goes outside of the case and brings into it matters foreign or not pertinent to the case made by the indictment is only calculated to confuse and mislead the mind's of the jury as to the •true issue; whereas the true object of a charge is to instruct, enlighten and make plain the law applicable to the facts upon which a conviction is claimed.
In more than one burglary case has this court been compelled to reverse the judgment because the charge of the court was not confined to the character of burglary as made by the charge in the indictment. We have endeavored to impress it upon trial judges that where the charge is a burglary by force alone the law of threats or fraud has nothing to do with it, nor under such an indictment is it essential that the jury should know even that a burglary may be committed by an entry accomplished by means of threats or fraud, at night. (See Sullivan v. The State, 13 Texas Ct. App., 463; Weeks v. The State, 13 Texas Ct. App., 466; Buntain v. The State, 15 Texas Ct. App., 485; Goode v. The State, 16 Texas Ct. App., 411.)
To have given the definitions of the offense as stated in the Code, whilst abstract, would not perhaps have amounted to reversible error if the judge, in his application of the law directly to the facts, had properly limited the action of the jury to a burglarious entry by “ force,” as stated in the indictment. This, however, is not done. They were told in that connection that, if defendant “ either alone- or partly with some other person did enter the house of H. F. Boyd in the night time, without the consent of said H. F. Boyd, with the fraudulent intent of committing the offense of theft, as herein defined, then in case you so believe you will find defendant guilty,” etc. They were nowhere told that they must find that the entry was made by “ force,” or they should not convict. Under the charge as given it was only necessary that they should find an entry without the consent of Boyd. Such an entry, even with the intent to commit theft, would not be burglary unless the entry was accomplished either with the use of “ force,” “ threats ” or “ fraud,” and in this case neither threats nor fraud, nor, indeed, both combined, would suffice, because the offense was charged to have been com*602mitted by “ force,” and by “ force ” alone. The original abstract error in the charge became fatal when the court failed to correct it in the application of the law to the facts.
We deem it necessary to call the attention of the prosecution to another matter which is called to our attention by the able brief of counsel for appellant. This prosecution rests upon the confessions of the appellant, corroborated by the discovery of the stolen property by means of the confession. Blow if this be so, why was not the gun which was found by the officer identified as the property of the injured party? If it was, the statement of facts should have shown it; there should have been no doubt about the identification of the property after the finding. As it was, the statement of facts only shows with certainty that the owner identified a cigar which the officer got the next morning from defendant, and not from the place where the stolen property was found. Boyd does say he got back his gun from the grand jury, but defendant is in no manner connected with this gun which the grand jury gave back to Boyd. We cannot indulge in inferences and conclusions with reference to facts which it is essential to prove. As stated in this record, none of the property found by means of the confession was identified as that of Boyd.
It is unnecessary to discuss the other questions raised. Because ¿he court’s charge to the jury was erroneous in the particulars pointed out, the motion for rehearing is granted, the former judgment of affirmance set aside, and the judgment reversed and the cause remanded for a new trial.
Reversed and remanded.
[Opinion delivered February 28, 1885.]