Appellant was indicted for a burglarious entry in the day-time into the house of one Hardin, with intent to steal the property therein of one McFaddin. The indictment sufficiently charges the offense. It was not essential that it should allege, further, that the entry was without the consent of the owner or any one authorized to give such consent. (State v. Williams, 41 Texas, 98; Buntain v. The State, 15 Texas Ct. App., 485.) All the statutory ingredients of the crime of theft were properly alleged, as should have been done. (Reed v. The State, 14 Texas Ct. App., 662.) In an indictment for burglary with intent to commit theft, it is permissible to charge not only an entry with intent to steal, but also a theft after entry, in the same count in the indictment. (Shepard v. The State, 42 Texas, 501; Hobbs v. The State, 44 Texas, 352; Howard v. The State, 8 Texas Ct. App., 447; Miller v. The State, 16 Texas Ct. App., 417.)
At common law it was sufficient, in all cases where a felony had actually been committed, to allege the commission without the intent (1 Hale’s P. C., 560; 2 East’s P. C., 514); and in such cases no evidence except that of the commission of the offense was required to show the intention. (Roscoe’s Crim. Ev. (7th ed.), 371. See, also, State v. Golden, 49 Iowa, 48.) But under our statute (Penal Code, art. 704) the burglarious entry must be with the intent of committing felony or the crime of theft, and the main intention controls the subsequent act of theft. The intent with which the burglarious entry must be accompanied is of the essence of the offense, and is a fact which should be expressly alleged in the indictment, because it is a fact which is essential to be proved by the State. (Reeves v. The State, 7 Texas Ct. App., 276.) It is required by statute that “ everything should be stated in the indictment *128which it is necessary to prove ” (Code Crim. Proc., art. 421); and further, that “ where a particular intent is a material fact in the description of the offense, it must be stated in the indictment.” (Code Crim. Proc., art. 423; Morris v. The State, 13 Texas Ct. App., 65.)
In burglary at common law the rule was well settled that evidence that a felony was actually committed is evidence that the house was broken and entered with intent to commit that offense.” (1 Hale’s P. C., 560; 2 East’s P. C., 514; Roscoe’s Crim. Ev. (7th ed.), 369.) With us, however, “ the intent” in burglary is of the essence of the offense, and must be proved like any other substantive fact; not, indeed, by express and positive testimony, but by the best evidence of which the case is susceptible. (Reeves v. The State, 7 Texas Ct. App., 276.)
In the case we are considering, appellant was an entire stranger in the country where the burglary was committed, and could not possibly have known that the property he is alleged to have stolen was in the house he is charged with breaking. It is clear that he could not have entered the house with the purpose of stealing that particular property.
It was not necessary that the indictment should have specifically described the property intended to be stolen (Martin v. The State, 1 Texas Ct. App., 525; Coleman v. The State, 2 Texas Ct. App., 512); but the fact that the specific articles are mentioned, even though he may not have known that they were in the house, would not invalidate the conviction if it be made clearly to appear that his intent was to commit the crime of theft; nor would the fact that he stole the specific articles named be a variance from the allegation that he entered with the intent to commit the crime of theft. If his entry was with the intent to commit the crime of theft, and he actually committed the offense by taking certain specific articles, the offense is complete. In other words, it is the intent, and not the character of the articles stolen after the entry, which characterizes and makes the offense complete. A party may break into a house with intent to steal provisions, and, not finding such provisions, may actually steal clothing, and yet he would be as guilty of the crime of burglary as though he had taken the provisions he had intended to steal; because his intention primarily was to commit theft. But where the indictment selects any articles as those stolen, the proof must correspond with such allegation or there will be a variance. (Allen v. The State, just decided, ante, p. 120.) Whether he stole the particular property intended, or stole some article which he had not *129originally intended to steal, the fact that he committed theft of any property whatever is a carrying out of his intention, which was to commit theft, and makes him equally guilty. (Phillips v. The State, 29 Texas, 226; 1 Bish. Cr. L. (7th ed.), §§ 342 and 313.)
Following the rule of the common law with regard to evidence of intent, the learned judge, in his charge, instructed the jury as follows: “If the jury believe, from the evidence, that the defendant did, with the intent to commit the offense of theft, by force and breaking enter the dwelling-house of R S. Hardin, in Hunt county, on some day in December, 1884, and did, after such entry and whilst in said house, steal, take and carry away certain personal property belonging to Grade McFaddin, the law presumes, in the absence of evidence to explain the taking, that the entry was made with intent to steal such personal property, although defendant, at the time of such entry, may not know that such property was in such house.”
It is provided by our statute that “ the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.” (Penal Code, art. 50.) And yet it has been held improper, in a number of instances, that this statute should be given in charge 'to the jury (Luera v. The State, 12 Texas Ct. App., 257), because the presumption of innocence is stronger than any presumption of guilt arising merely from the means used to accomplish the guilty purpose, and the burden rests upon the State, in a criminal trial, to overcome the presumption of innocence, and to establish the guilt of the accused by legal evidence beyond a reasonable doubt. (Jones v. The State, 13 Texas Ct. App., 1; Thomas v. The State, 14 Texas Ct. App., 200; Brinkoeter v. The State, 14 Texas Ct. App., 67.)
As we have more than once stated above, “ the intent is of th^ essence of the crime in burglary,” and it is a fact which must bfe'5 not only alleged but proven; not positively, since, perhaps, it is incapable of positive proof, but by such evidence as will satisfy the jury of its existence. Its existence is a fact not to be presumed by law, but is really an inference of fact to be ascertained and found by the jury from the other evidence in the case. Such an inference is similar to the one to be drawn from the possession of goods recently stolen, which latter, Mr. Wharton says, “ is not one of law, but of probable reasoning, as to which the court may lay down logical tests for the guidance of the jury but can impose no positive binding rule.” (Wharton’s Crim. Ev. (8th ed.), §§ 758 to 761, inclusive.) He further says that “ where the charge is burglary, it is alleged that mere possession of the stolen goods, unaccompanied *130by other suspicious circumstances, is not enough to give prima facie evidence of the burglary.” (Whart. Crim. Ev., § 763.)
We are of the opinion that the charge of the court is obnoxious to the objection that it was upon the weight of evidence, since it instructed the jury that the law presumed a fact which it was essential for them to find, and which could only be found by them from the evidence. Another fatal objection to the sufficiency of the charge of the court is that it omits entirely to give the jury any instructions with regard to circumstantial evidence. The case was one wholly of circumstantial evidence, and the jury should have been properly instructed with regard to the rules pertaining to that character of testimony.
For errors in the charge of the court the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered April 29, 1885.]