As charged in the indictment, the offense wal burglary with intent to commit theft of personal property of the value of $50.
The essential requisite to burglary under our statute is the intent of the entry, and this intent may-be to commit any felony “or the crime of theft.” (Penal Code, arts,. 704, 705.)
With regard to the character of property which may be the subject of theft, it is provided by the Code that “the property must be such as has some specific value capable of being ascertained. It embraces every species of personal property capable of being taken.” (Penal Code, art. 725.)
As to value of stolen property, the general rule both as to pleading and proof is that whenever the value of a stolen article affects the penalty for the offense, such value must be alleged and proved. (Pittman v. The State, 14 Texas Ct. App., 576.) Such proof is essential to determine whether the offense is a felony or misdemeanor, and the line of demarcation between the grades is fixed by our Code at $20. (Penal Code, arts. 735-748; 2 Bisb. Crim. Proc. (3d ed.), § 713.)
In burglary, however, the value of the articles stolen has nothing to do with the grade of offense or the assessment of the punishment; for all kinds of burglary, with regard to punishment, are *202upon the same general footing, and are punished as felonies. (Penal Code, art. 711.)
[Opinion delivered January 27, 1886.]It is shown by the evidence in the case before us that appellant, after his burglarious entry, stole from the house some “ biscuits ” and “spare-ribs.” Ho proof was adduced of the value of the articles stolen. Whilst it is the better practice both to allege and prove value in all such cases (Willson’s Crim. Forms, 460,461, p. 200), a failure to do so, it seems, is neither error as to validity of pleading nor sufficiency of proof. (Carr v. The State, 19 Texas Ct. App., 637.) In Sullivan v. The State, 13 Texas Ct. App., 462, it is said: “Theft being the object of the entry, must the value of the goods be alleged? Theft of property under $20 being a misdemeanor in this State, allegation of value would be absolutely necessary if the Code had not extended the law of burglary so as to include all theft, whether felony or misdemeanor. We are of opinion that it is not necessary to charge value.” (Citing Bish. Crim. Proc., 2d vol., 146. See 2 Bish. Crim. Proc. (3d ed.), § 713.) If not necessary to allege value, then it is not necessary to prove it, because everything should be stated in the indictment which it is necessary to prove. (Code Crim. Proc., art. 421.)
Some irregularities are pointed out by brief of counsel in the charge of the court, and, whilst it may be obnoxious to 'criticism in the particulars named, still it was not excepted to, and no fundamental error is made manifest.
It may appear a great hardship to send a party to the penitentiary for two years “for the theft of biscuit and spare-ribs,” but it must not be, overlooked that the offense is not alone the theft, but the burglarious entry of a house in order to perpetrate the theft, and the value of the articles stolen does not affect the question of punishment.
The judgment is affirmed.
Affirmed.