Bobino v. State

On Motion for Rehearing.

HAWKINS, J.

Tbe motion for rehearing is predicated on a proposition not discussed in our original opinion. It is based on tbe sole point that under tbe court’s charge tbe evidence is insufficient to support tbe verdict.

Tbe indictment contained two counts. Tbe first expressly charged that tbe burglary was committed in tbe nighttime; tbe second alleged .that by force, threats, and fraud appellant burglariously and fraudulently broke and entered tbe house in question. By an unbroken line of authorities it is held tbat tbe Second count was sufficient to' charge either a daytime or a nighttime burglary. Carr v. State, 19 Tex. Cr. R. 635; and other authorities cited in section 2327, Branch’s Ann. Tex. P. C. The court submitted a “daytime” burglary only, properly defining “daytime” as being any time of tbe 24 hotirs from thirty minutes before sunrise until thirty minutes after sunset (article 1396, P. C.), and required tbe jury to believe from tbe evidence beyond a reasonable doubt that tbe bouse was entered by force in tbe daytime. It is claimed in tbe motion for rehearing tbat no evidence is in tbe record showing said burglary occurred in tbe daytime. Appellant refers to the testimony given by tbe accomplice witness -as follows: “We did not walk in there in 6roach open daylight. It was just about dusk dark, the sun had gone down. Tbe sun bad been down, I guess, about forty nmvwtes.” If there were no evidence in the record other than that quoted which throws light upon tbe time tbe burglary was committed; tbe point now urged by appellant would be troublesome. According to tbe owner’s testimony, two doors: were removed from tbe inside of the bouse, as were also tbe two bathtubs. Tbe owner also testified tbat she examined tbe bouse and found that it was entered from the back; tbat tbe back door was broken open. Silas testified tbat tbe first he knew about the bouse was wben be met appellant and Bridges; tbat they bad two doors already on a wagon, and told witness' about ‘ the bathtubs, and tbat they (witness, appellant, Bridges, and Hubbard) decided to get the tubs; that witness and Hubbard walked and appellant and Bridges went in tbe wagon; that witness and Hubbard got to tbe bouse first; and that witness opened tbe front door and walked in. Silas said be knew nothing about wben tbe doors were taken and bad nothing to do with getting them. Tbe time spoken of by Silas, as being forty minutes after sundown, referred to tbe time wben be went to the bouse to get the bathtubs. Tbe evidence shows tbat tbe bouse bad been burglariously entered before tbat time and tbe doors taken. This, we think, supports the findings of the .jury of a daytime burglary, as submitted by tbe court.

Tbe motion for rehearing is overruled.