As stated in the original opinion, the first count of the indictment charged in appropriate language an attempt to break into the house at night with intent to commit theft. In defining burglary, the court told the jury it was *Page 220 constituted by entering a house by force at night with intent to commit a felony or theft. This, of course, was a correct general definition of burglary under the statute. Articles 1389 and 1390 of the P. C. The indictment contained no count charging that the attempted burglary was with intent to commit a felony. In applying the law to the facts the court instructed the jury to find appellant guilty if he attempted to enter the house with the intent to "commit a felony or the crime of theft." Written objection was filed to that part of the instruction using the term "felony." The court should have stricken it from the instruction because no such averment was in the indictment. However, we are unable to see how the error complained of could work harm to appellant. It is true, if the evidence raised the issue that the entry of the house was with intent to commit some crime which was a "felony," then it might be urged that the failure of the court to correct the charge in response to the objection resulted in injury to appellant. In the absence of a statement of facts, this court, of course, has no knowledge of what the evidence disclosed. We can not presume that it raised any such issue as burglary with intent to commit a felony without which the error in the charge appears harmless. Article 666, C. C. P., provides that a reversal shall not be awarded because of an error in the charge unless it was calculated to injure the rights of accused. Application of this principle in the present case we think calls for overruling the motion for rehearing, and it is so ordered.
Overruled.