Railey v. State , 58 Tex. Crim. 1 ( 1909 )

I am of opinion motion for rehearing should be granted, and, therefore, respectfully enter my dissent to the affirmance of the judgment.

The attorneys in the case for appellant, Messrs. Fisher Allison, Brockman, Kahn Williams, and T.H. McGregor, have forcefully, clearly and ably presented the reasons why the affirmance should be set aside. After reviewing their argument I think their reasoning sound. Their conclusions are unanswerable, and present the questions involved so concisely, and in such logical manner, that it would be unnecessary even were I able to do so to add anything to what is contained in said brief. I, therefore, adopt their argument as my dissenting opinion in the case, as follows:

"To arrive at a proper understanding and construction of article 841, it becomes necessary to examine and consider the law as it was before the enactment of such article and its companion articles to the Code relating to burglary; also different Acts of the Legislature relating to the adoption of the Code, the expressed opinions of the different codifiers, as well as the construction placed upon the different articles of the Code by lawyers `learned in the law' and the opinion of judges who, as either lawyers or judges, were contemporaneous with the law before the adoption of the Code, at the time of the adoption and subsequent thereto. All of this we wish to consider, not only for the purpose of arriving at the legislative intent, but how such intent was gathered and construed by those whose duty it was, by professional or other duties, to arrive at, construe and determine such intent.

"The first law of burglary (in Texas) was that of December 21, 1836, and is found in Hartley's Digest, article 105, page 115, as follows: `Every person who shall break and enter into any dwelling-house, or store, by night, and feloniously take therefrom any goods, chattels, money, or other articles of value, shall be deemed guilty of burglary, and on conviction thereof shall suffer death.' Thus the law read until January 1, 1849, when the Act of March 20, 1848, became the law, as follows: `That if any person shall, in the night-time, break and enter any dwelling-house, with intent to commit any crime, the punishment whereof may be death, or confinement to hard labour in the penitentiary, for a term of not less than five years, nor more than fifteen years.'

`That if any person, with intent to commit any crime, the punishment whereof may be confinement to hard labour in the penitentiary, or to commit larceny, shall in the night-time break and enter any office, shop, store, or warehouse, or any vessel lying within the body of any county, he shall be punished by confinement to hard labour in the penitentiary, for a term of not less than one year, nor more than ten years.'

`If any person shall, in the night-time break and enter, or in the daytime break and enter any dwelling-house, or any outhouse adjoining thereto, any office, shop, store, warehouse, mill, or cottongin, any meeting-house, courthouse, townhouse, college, academy, schoolhouse, or other building erected for public use, or any vessel lying within the body of any county, and shall therein commit larceny, he shall be punished by confinement to hard labour in the penitentiary for a term not less than one year, nor more than five years.' Hartley's Digest, p. 116, articles 108, 109, 110. This continued as the law until the 28th of August, 1856, when the `Penal Code' went into effect. A great deal of confusion was found to exist prior thereto. Therefore, to systematize the laws of the State the Legislature on the 11th of February, 1854, by enactment, provided for a codification of the laws of this State, and Messrs. Harris, Hartley and Willie, all able lawyers, were appointed as codifiers. The Code of 1856 is the result of these labors. However, many amendments were made by the Legislature before the adoption thereof. Chapter 6, Title 20, pp. 142, 143 and 144 of the Penal Code were adopted substantially as reported by these codifiers, but article 725a was added by the Legislature as an amendment, as will appear from the enrolled bill filed with the Secretary of State. The Legislature evidently was not satisfied with the definition of `entry' as defined in article 726, the same not being to its mind sufficiently full and complete. The offense of burglary, however, was fully defined by article 724 and 725. Under these two articles, as defined, no entry, however wrongful, unless coupled with an intent to commit a felony could be burglary. Shortly after the adoption of this Code, the Legislature, by the Act of the 15th of February, 1858, again provided for the arrangement, classification and printing of the laws, and required not only the proper codification, but further required, `Besides the laws in force, it shall contain the appropriate titles in smaller type, and the repealed laws of the Republic and State of Texas by, through, or under which, rights have accrued; also, the colonization laws of Mexico and Coahuila and Texas, which were in force before the Declaration of Independence by Texas. Marginal notes indicating the subject ofeach section, and containing references to laws upon the same subject, if there be such, and at the foot of each page, referring to the decisions of the Supreme Court in which there have been judicial interpretation of the Act or section to which such notes are attached.' Messrs. Oldham and White, two lawyers who stood high in the profession, were selected to do the work, which, upon being completed, became the standard of authority and so remained (of course, subject to such changes as were subsequently made by the Legislature) up to 1879, when the laws were recodified. No changes were made in the definition of burglary from 1856 to 1876, at which time the words `or the crime of theft' were added by Act of August 21, 1876. Prior to that time nothing short of a felonious entry would constitute burglary, but as the Legislature at that time had repealed the law making theft from a house a felony, it became necessary also to incorporate `intent to commit the crime of theft' into and as a part of the definition of the offense. This brings us now to the question: `Is the discharge of firearms into a dwelling-house with intent to injure any person therein, in the absence of a felonious intent, per se burglary under article 841, when construed in connection with articles 838, 839,' etc.? If such was the legislative intent in the enactment of article 841, then the opinion of the majority of this court is right in sustaining the indictment upon which the conviction was predicated. If on the other hand article 841 only attempts to define modes of entry and not the offense of burglary itself, then this case ought to be reversed and dismissed.

"Strange as it may seem, it does not appear from the judicial records of the higher courts of this State, so far as we have observed, that the law of burglary was violated from 1836 to 1867, when for the first time a case involving this offense made its appearance in the Supreme Court under the style of Portwood v. State, 29 Tex. 47, which was an appeal by the State from a judgment of the lower court quashing the indictment. The court in that case in construing the law says: `It is an essential ingredient of the offense herein intended to be charged that the house should be entered for the purpose of committing a felony.This is averred in the words of the statute.' (Italics ours.) While we have no judicial interpretation by our courts from 1836 up to 1867, yet we have the opinion of eminent lawyers during such time which carry as much weight as if expressed under the sanction of judicial procedure, such men as Harris, Willie, Oldham, White, Paschal, Wheeler, Bell and Pease, all, or nearly all, of whom expressed themselves as to the legislative intent and as to the proper construction to be given to the different articles of the Penal Code. It must be borne in mind that while Texas was not a `common law State,' yet most of her people who came here from 1830, were from States where the common law prevailed. They were not accustomed to and knew nothing of the civil law prevailing when Texas declared her independence, hence, most of the statutes describing offenses from 1836 on were made after the model of the common law. By an examination and comparison of the different articles and principles embraced in the law of burglary, as found on pp. 142, 143 and 144 of the Penal Code of 1856, it will be seen to be a rehash of the common law. To illustrate: The offense of burglary at common law is defined as follows: `A breaking and entering the mansion-house of another in the night, with intent to commit some felony within same, whether such felonious intent be executed or not.' Russell on Crimes, vol. 2, p. 1, International Edition, 1896. The entry must be to commit a felony. Nothing short of that will do. At common law there can be no such thing as burglary without an entry, nor entry without an intent to commit a felony. Russell, in speaking of entry under his first chapter, second section, vol. 2, above referred to, says: `With respect to the entering necessary to constitute burglary: it is agreed that any, the least, entry either with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, will be sufficient.' Page 10. And again, `Though it is admitted that a person putting a pistol in at a window with intent to kill, thereby makes a sufficient entry to constitute a burglary, yet it has been questioned whether if he should shoot without the window, and the bullet come in, the entry would be sufficient. It is, however, elsewhere laid down that to discharge a loaded gun into a house is a sufficiententry,' p. 11. Now, here we find in the first instance a definition of burglary, and wherever he speaks of the entry as in the second instance, it is coupled with a felonious intent. The entry is the mode of committing the burglary. It is not the burglary itself. That together with the intent constitutes the burglary. The absence of either destroys the offense. We call the attention of the court to Russell's title on burglary for the purpose of showing that the lawyers who codified the law of 1856, and the Legislature which adopted that Code, being common law lawyers and men from common law States, did so with a view to make it conform as nearly as possible — not only to the common law offense, but to the construction given by the courts when called upon to construe any of those offenses. Therefore, when they inserted article 726 in the Code and adopted it, which is now article 841, they had the common law construction in view and intended such article, not as a definition of burglary, but as one of the means of entering for the purpose of committing burglary. Now, let us look to Oldham White's Digest, which was compiled in obedience to the Act of the 15th of February, 1858, as before stated, and which was approved by both Judges Wheeler and Bell, judges of the Supreme Court, in compliance with such acts that two of the judges should approve the work. We must bear in mind that the Act of February, 1858, required Messrs. Oldham and White to place `marginal notes indicating the subject of each section and containing references to laws upon the same subject.' This they did, which became by legislative enactment a part of the law demonstrating the legislative intent as to each article. These marginal notes indicating the subject of each section were afterwards carried into and became a part of Paschal's Digest, showing the construction that he, as an able and learned lawyer, placed upon the legislative intent. Not only that, but since, they have been carried forward into the Codes of 1879 and 1895. These facts are referred to for the purpose of showing the construction placed upon these different articles, not only by learned lawyers, whose duty it was to codify the laws, but by the different Legislatures in legislating upon the subjects embraced therein. Now, when we turn to articles 724 and 725, as found in Oldham and White, we find the marginal notes showing that these two articles define the offense of burglary. When we turn to articles 725a and 726, we find the marginal notes saying, `These articles define the term `entry.' Then are we not justified in contending that articles 725a and 726 do not, within themselves, attempt to define the complete offense of burglary, but only one of its constituents? When we turn to the Code of 1879 we find the same construction given to articles 704, 705, 706 and 707, which in that Code took the place of articles 724, 725, 725a and 726 of Oldham White. Now, the codifiers of that Code were five of the ablest lawyers who ever adorned the bench or bar of Texas. They were J.W. Ferris, B.H. Bassett, S.A. Willson, George Clark and C.S. West. They were known not only for their great learning, but for system and painstaking care. They adopted the same construction, as said before, that was placed upon the legislative intent by such men as Paschal, Oldham and others.

"As before stated, these lawyers, being from common law States, and they knowing and understanding that burglary at common law was a felony and that no statute prior to that of 1876 dispensed with a felonious intent, and only then except in cases of intent to commit theft, and the class of men forming the different Legislatures, being also from common law States, it is hardly presumable that they would make so radical a departure from the common law as to make one of the elements of the offense, namely, entry, burglary, per se, thereby changing the whole scope and character of the offense as it existed at common law. We, therefore, respectfully submit that taking the interpretation of those most learned in the profession, and who were in the main contemporaneous with the different enactments above referred to, it is safe to give to this law and the legislative intent the interpretation given to it by such men.

"Now, let us examine the interpretation given by courts. As was said before, the first case is that of Portwood. A decision by Judge Donley, who came to Texas at an early day, ranked high as a lawyer, and was frequently a member of the Legislature prior to 1860. He being contemporaneous with the enactment of those laws, his opinion carries with it much weight. We respectfully refer this court to that case wherein the judgment was affirmed, sustaining the judgment of the lower court quashing the indictment. The next case is that of the State v. Robinson,32 Tex. 160, opinion by Judge Lindsey, wherein the indictment was sustained (the indictment alleging that John Robinson with force and arms did feloniously break and enter the dwelling-house of Frank Robinson), who said in the opinion, p. 163, `In all cases the entry must be with a felonious intent, which felonious intent is manifested after the entry by the actual attempt, or commission of some specific felony, and which ought to be alleged, according to the facts of each case.' The next case is that of the State v. Robert Williams, 41 Tex. 98, an appeal by the State from judgment of the lower court quashing the indictment, which judgment was affirmed, Judge Devine rendering the opinion, wherein this language is used: `The mere entry into a house by force in the nighttime, however great the trespass, and however great the risk of personal injury or danger to the intruder may be, is nevertheless nothing more than a misdemeanor. To constitute the act (burglary) there must be some evidence of a felony being committed, or some facts evidencing an intent to commit a felony, which act or intention, being coupled with the unlawful entrance, constitute the crime of burglary. No such attempt to commit a felony is charged in this indictment.' Judge Devine came to Texas at an early day, was one of the great lawyers of the State, thoroughly familiar with our system, understood the common law, as well as our legislative enactments, and he indulged in no idle remark when he said `there must be some evidence of a felony being committed, or some fact evidencing intent to commit a felony coupled with the entry.' The next case is that of Wilburn v. State, 41 Tex. 237, opinion by Judge Reeves, also an old Texan, who was thoroughly familiar with our laws, and who says in that opinion, to constitute burglary, `there must be a breaking and entry, a felonious intent; and it is not material whether the intention to commit a felony is actually carried into effect, or only demonstrated by the attempt or some overt act, to be decided by the jury from the facts in evidence.' These cases so far referred to were all prior to the amendment of 1876. In the case of Searcy v. State, 1 Texas Crim. App., 440, Judge Ector rendering the opinion of the court says: `We think the indictment is a good one for burglary under article 2362, Paschal's Digest' (art. 841). By an examination of the indictment in that case it will be seen that Steve Searcy did then and there wilfully, unlawfully, feloniously and burglariously discharge certain firearms, namely, a pistol, into the dwelling-house of Nelson Paulingman, with the wilful and felonious intent then and there to commit a felony in said house, namely, he, the said Searcy, did then and there discharge said pistol into said house, as aforesaid, with the wilful and felonious intent on the part of him, the said Steve Searcy, of his malice aforethought, then and there to murder,' etc. When we turn to our Penal Code, sec. 1436, p. 560, as annotated by Judge White, who was for years Presiding Judge of this court, we find the form of indictment given for burglary when the entry was had by the discharge of firearms. In that form it will be seen that facts must be alleged going to show the intention to commit a felony. It is unnecessary to refer to other authorities. Suffice it to say that at common law to constitute burglary there must be a felonious entry and under our definition of burglary from 1836 up to the present time to constitute burglary, the entry must be shown to be either felonious or to commit theft. Such being the interpretation put upon it by all of our courts heretofore, and by those learned in the profession, it evidently being intended that our Act as to burglary should assimilate itself as near as possible to that of the common law, it should be made clearly to appear to this court that the only construction that this court can give to it, is the one that it has adopted in this case, before it will be authorized to overthrow the construction heretofore placed upon the law of burglary.

"The construction that this court has given to article 726 (841) destroys absolutely the right of self-defense. Therefore, if such be the purport of this article, and such was the intention of the Legislature, then such article should be held to be nugatory because no law making power in Texas, or anywhere else can take away from a citizen the right to defend himself from an unlawful attack, or from what appears to him to be an unlawful attack. Let us see what is the logical result of the holding of this court. A is walking along the street interfering with no one. B, an enemy of his, raises the window of his house and begins to fire upon A. If A returns that fire in self-defense, under this definition, he is guilty of burglary. If he does not return the fire, he is in danger of the loss of his life or serious injury. If it be the purpose of this court to so hold, then it is unsupported by either law, logic, or reason. Why? He fires into B's house with intent to injure B. The discharge of the firearm into the house with the intent to injure is, under this definition, per se burglary, and the fact that he fired in self-defense would be no defense for burglary under this decision, because the principal issue in this case, as made by the evidence, is that when the defendant fired into Schmidt's house he fired in defense of himself, because he thought that his life was in danger. If defendant had been charged with assault with intent to murder, he would have had a complete defense; by being charged with burglary, though he acted in self-defense and upon the same state of facts, he is guilty of burglary without any defensive rights whatever, and the evidence which would acquit him of assault with intent to murder, is not admissible in a charge of burglary. This court ought to hesitate a long time before making such a radical departure as it is doing in this case."

A rehearing ought to be granted herein, the former opinion set aside, and the judgment of the court below reversed and this prosecution dismissed.

I wish further to state that Messrs. Brockman, Kahn Williams filed very able and exhaustive briefs and arguments in addition to that set out in my dissent covering this and other questions, as did Hon. T.H. McGregor, which have been of great service to me in reviewing the question there discussed, and in arriving at the conclusion reached. Owing to the great length of these briefs and arguments, they have not been embodied in the dissenting opinion. They will, however, be perpetuated in the official report of the case in such form and manner as is authorized by law in regard to reporting briefs in cases.

For reasons above stated, I enter my dissent.