This prosecution was for burglary and theft, and the indictment contained two counts, one for a burglary and theft in the day time, and one for burglary and theft at night. The defendant was convicted and adjudged *72guilty of burglary, and the only question arising upon the record is as to the sufficiency of the indictment as a charge for burglary.
Opinion delivered October 22, 1887.It will be noted that the counts are not for burglary alone, but each one charges conjointly a burglary and theft. In substance and effect,'the charge is that defendant entered the house to commit theft, and, whilst it does not give in that connection the elements of the theft he intended committing, it does charge all the' elements of the theft he actually committed, and connects in one sentence, by the conjunction “and,” the intent with the act, which act is fully described in the statutory words used to define theft. The pleader has followed form 461, Willson’s Criminal Forms, page 300. It is not burglary with intent to commit theft alone which was the crime intended to be charged. In such case, form 460, Id., should have been followed, and in such case, where the offense intended and not its actual commission is the object, the intended offense must also be charged with all its ingredients.
Not so when the actual commission is charged in the same count after the unlawful entry. It would be a useless tautology to require the pleader to allege in the same count the statutory ingredients of the intended crime, and then repeat those same ingredients again in the crime into which the intent is consummated and merged. If you aver that A intended to commit theft, and then state particularly the accomplished acts of his which constitute the statutory definition of theft, is not A as fully put upon his notice of the intended crime as he is of the crime committed? We think so. The fact that the same count may charge two offenses, and that the party might have been convicted for either burglary or theft (Penal Code, art. 713), is no argument that the count is insufficient for burglary; because, where the two offenses are charged in the same count, the rule is that on conviction the theft would be included in the burglary, and no judgment could be rendered for the theft. In such case the conviction for burglary would bar a subsequent prosecution for theft. (Miller v. The State, 16 Texas Ct. App., 417; Howard v. The State, 8 Texas Ct. App., 447; Black v. The State, 18 Texas Ct. App., 134; Smith v. The State, 22 Texas Ct. App., 350.)
Believing that .each count was sufficient to charge burglary, the crime for which appellant has been convicted, and having found no error in the record, the judgment is affirmed.
Affirmed.