This case was at a former day of this term affirmed and is now before us upon appellant's motion for rehearing, in which his counsel, ably and at length, present certain grounds therefor which we will notice in their regular order.
Three objections are raised to the soundness of this court's former opinion: First, that this court erred in holding that there was no variance between the copy of the indictment served on appellant and the indictment itself. It appears from the record that the copy used the word "corporal" instead of the word "corporeal." We do not think there was any error in holding against appellant on this as it has been frequently held by this court that the mere misspelling of a word in an immaterial matter is not reversible.
Again, complaint is made that the court erred in misapprehending appellant's contentions as to errors in the trial court's charge relating to "entry, breaking, force," and in erroneously attributing to appellant a theory as follows: "Appellant's theory, it seems, was that the indictment not charging specifically a night-time burglary by alleging that it occurred at night, that the indictment alleged only a daytime burglary and on this theory, which was incorrect, he made objections to the court's charge which were untenable." Regardless of the verbiage of the opinion heretofore rendered, it is true that appellant's counsel in an argument, more ingenious than sound, has ably and at length argued that the trial court erred in charging the law applicable only to a night-time burglary, instead of charging "what the indictment alleged."
As stated in the original opinion herein, the indictment charged that accused "did then and there unlawfully and by force, threats and fraud break and enter, etc.," there being no allegation in the indictment whether the same was in the daytime or the night-time, but the testimony showed without question a night-time burglary, if any, and an entry through the door of the alleged burglarized building. Nor was it contended in the lower court that if force was used to effect an entry that it was other than as applied to the building itself. Bearing in mind these facts, and that article 1308, P.C., defines a breaking as "the slightest force," and also, that this court has uniformly held that such slight force as pushing open a door held shut only by friction against the frame thereof or raising a window that is down, is such force as to constitute a breaking, we are unable to see any force in the position of appellant. If he entered the building at night by force, and by force applied to the building, this, in law, would amount to a breaking. In other words, if we rightly comprehend appellant's contention on this point, it is, briefly, that the indictment charges an entry by breaking, and notwithstanding the evidence shows an entry by force which in law amounts to a breaking, that a wrong is done him by not defining "breaking," but by simply telling the jury that if appellant *Page 599 entered the house by force he would be guilty. We can not agree with this interpretation of the law. If there was evidence, even the slightest, raising the question as to whether the entry was by force other than as applied to the building, or if there was any doubt as to whether the slightest force applied to the building to effect an entry constitutes a legal breaking, in either event we might hold otherwise, but such is not the case here.
The remaining contention of appellant is that the trial court erred in overruling his application for a continuance, same being for some witnesses by whom he expected to prove statements made by a State's witness who was an accomplice to the effect that he, said witness, and not appellant, had committed the burglary. We are clearly of the opinion that such evidence as to this appellant was hearsay and would have been admissible only for the purpose of impeaching said State witness in the event he denied making the alleged statements, and denials of applications for continuances have been upheld by this court when it appeared that the absent witness was only for the purpose of impeachment. Counsel for appellant cite, in support of their contention, that this evidence is admissible for purposes other than impeachment, the case of Harrison v. State, 47 Tex.Crim. Rep., 83 S.W. Rep., 699. That was a homicide case in which the court, by some limitations in his charge, deprived the jury of the right to consider certain testimony which clearly appears to have been admissible as original testimony on that trial. The other case cited by counsel is that of Tull v. State, 55 S.W. Rep., 61. In that case the application for a continuance was for absent witnesses by whom appellant expected to prove a statement made by the deceased mother of the prosecutrix in a rape case to the effect that her daughter was born at a certain time which would make her over the age of consent at the time of the rape. By the other witness that he had heard the prosecutrix's father make statements as to her age, and had seen the family Bible in which the age of the prosecutrix was written down, and that such testimony would show that she was beyond the age of consent. This court has held that testimony such as this, going to show the age, could, in some cases, be proved by hearsay, which would make same admissible as evidence in chief, and we do not think this case is authority for appellant's contention.
Counsel for the appellant have shown great research and ability in the preparation of their motion for a rehearing, but we are unable to agree with them in the soundness of their propositions.
The motion for rehearing is overruled.
Overruled. *Page 600