This is a conviction for burglary, the indictment charging a burglary in the night time. In his charge the judge instructed the jury that they might convict if the evidence showed that the defendant committed the burglary, either in the night time or in the day time. Defendant excepted to this instruction, and reserved his exception by bill.
It was error to give such instruction, as under the indictment •the conviction could only be had for a burglary committed in the night time. (Bravo v. The State, 20 Texas Ct. App., 188; Mace v. The State, 9 Texas Ct. App., 110.)
The judgment is reversed and the cause is remanded.
Reversed and remanded.