On Motion for Rehearing.
MARTIN, J.The indictment in the instant case charged the burglarious entry of a *787house by force, threats, and fraud at night, under article 1389, Pen. Code 1925. The court defined entry in the language of article 1392, Pen. Code 1925, quoted in the original opinion. There was no definition of force any further than might be implied from the quoted language of article 1392, Pen. Code 1925. As held in the original opinion, this charge was erroneous. Judge Hurt in the early case of Hamilton v. State, 11 Tex. App. 116, went exhaustively into this question, and it was there held that article 1392, Pen. Code 1925, did not dispense with the necessity of alleging and proving that the entry was effected by some one or more of the modes set out in article 1389, Pen. Code 1925. In the Crane Case cited in the original opinion the facts showed unquestionably that the entry was effected by the use of force applied to the building. Moreover, the court pointedly told the jury that they must believe beyond a reasonable doubt that the entry was made by force directly applied to the house. No such charge was given in the instant case.
This case was originally affirmed upon the theory that no issue was made in the court below as to the character of breaking, and that the testimony unquestionably showed an entry by force. The statement of facts upon this question reflects that the owner of the burglarized building testified positively that he remembered closing the door and latching it. This statement was repeated by him. However, on cross-examination we find this statement by him: “I testified to the fact that I closed the .door with that wooden button that evening because I usually do that. * * * Well — I usually do that, and that’s the reason why I say I did it on that occasion.” The appellant did not testify. The testimony of the witness Weir, the owner of the alleged burglarized premises, is the only testimony found in the record upon this issue, and, taken as a whole, we have concluded upon closer examination that the issue of whether or not force was used to effect an entry was not necessarily foreclosed against appellant,' and that the jury might have concluded but for the charge in question that there was some doubt as to whether the proof sufficiently showed that the alleged burglarized building was closed on the night of the alleged offense. Under the charge of the court, by reason of the insertion of the language of article 1392, Pen. Code 1925, the jury may have found that appellant was guilty, though no force was used or necessary to be used, as the court affirmatively instructed the jury that it was not necessary that there should be any actual breaking to constitute burglary, and that any entry into a house but one made by the free consent of the occupant, or one authorized to give such consent, constituted burglary. We again reiterate what was said in the Crane Case, supra, that “caution should be observed by the trial courts in framing their charge on burglarious ‘entry’ in the light of- the opinions heretofore referred to.” It follows from what is here said that in our opinion the charge was prejudicially erroneous.
The motion for rehearing is accordingly granted and the judgment of affirmance set-aside, and this cause is reversed and remanded for a new trial.
Reversed and remanded.
PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.