Johnson v. State , 52 Tex. Crim. 201 ( 1907 )

Motion for rehearing is made in this case requesting the setting aside of the judgment of affirmance rendered at our recent Tyler term. As stated in the original opinion, one of the appellant's contention was, that the court should have defined to the jury what it took to constitute a night-time burglary. It seems that the particular point relied upon is that the court should have given an instruction, but did not, that night-time burglary was consummated by breaking into the house with intent to commit burglary, etc., at a time after a half-hour after sunset and prior to a half-hour before sunrise. We believe this rule is correctly stated in the former opinion that wherever the testimony is upon close lines as to whether the burglary may have been committed a half-hour subsequent to sunset, or a half-hour prior to sunrise, the court should submit that question to the jury, but we are still of the opinion that, in a case like this, it is sufficient to tell the jury, if they should find the burglary was committed at night, without going into a definition of the hours from half-hour after sunset and a half-hour before sunrise. The evidence is fully clear and conclusive in the case that the burglary was made made sometime after dark. Kimbrough, the alleged owner of the house, states that he left the house considerably after dark. The lights were on; that he did not know exactly what time it was, but knew that he went through the house and locked it. The following is stated with reference to the time: "Q. You say it was dark when you left the house? A. Yes, sir. Q. After you closed up. A. Yes, sir. Q. How long had it been dark? A. Quite awhile, fully thirty minutes. Q. That was around along in March? A. Yes, sir. Q. And it gets dark early, doesn't it? A. Yes, sir. Q. Lights burning in the street? A. Yes, sir. Q. And it was some time after this that the burglary was committed? A. Sometime after that, because I left the house immediately and proceeded down town." Another witness we think testified, hardly so pointedly as did Kimbrough, but still he places the facts so it was after dark. About it being after dark, there can be no question under the record. After leaving the house and going down to the café, and while en route to the café, Kimbrough met appellant and after some conversation with him let him have a little money. That he finished his supper and returned to his residence in about forty minutes. During the time he was absent from the house, it was burglarized. We think there was no error in the former ruling in regard to this matter, and there is no occasion for granting a rehearing upon that theory.

We do not deem it necessary to consider the other questions on the motion, as, in our judgment, there is nothing of importance in them.

The motion for rehearing is, therefore, overruled.

Overruled.