Duke v. State , 42 Tex. Crim. 3 ( 1900 )

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of three years.

Appellant insists that the court erred in refusing to instruct the jury in his charge that, if they should find and believe from the testimony that the door of the granary was open, and defendant made the entry through the open door, or if they had a reasonable doubt of said facts, they should acquit. The indictment charges that defendant "did then and there unlawfully, by force, threats, and fraud, break and enter the house there situated and owned by Charley Howard, without the consent of the said Charley Howard," etc. Under article 838, Penal Code, a burglary at night may be committed by three distinct methods, — either by force, threats, or fraud. Article 839 provides that one is guilty of burglary who, with intent to commit a felony or theft, by breaking enters a house in the daytime. In Smith v. State, 34 Texas Criminal Reports, 124, we held that where an indictment for burglary contained two counts, one for a nighttime and one for a daytime burglary, and the evidence clearly established nighttime, and also that the breaking was by force, it was immaterial whether the entry was by night or day, and it was not error for the court to refuse to define "nighttime," and instruct the jury to acquit if they had a reasonable doubt as to the time. See, also, Buchanan v. State, 24 Texas Crim. App., 195; Martin v. State, 21 Texas Crim. App., 1. In Carr v. State, 19 Texas Criminal Appeals, 658, we said: "By a close inspection of articles 839 and 940, it will be seen that by article 839 to constitute burglary there must be breaking. This is constituted by an entry with actual force, and this actual force of breaking must be exerted upon the building or house to obtain an entrance therein; that is, the force mentioned in article 840 and which is declared a breaking, must be applied to the house, in order to effect an entrance." Article 842 defines what the term "breaking" means, and illustrates the meaning of the statute "by the lifting of a latch," etc. The prosecution was based upon a burglary by force actually applied to the house entered. This may be done without charging whether the same was done at night or day. It appears from an inspection of the charge that the learned judge defined the term "entry," and also the term "breaking," and defined "nighttime" and "daytime." After so charging the jury, the court continued: "Now bearing in mind the foregoing instructions defining `burglary in the daytime and nighttime,' `house breaking,' `entry,' `theft,' `daytime,' and `nighttime,' if you believe from the evidence beyond a reasonable doubt that defendant * * * by force did break and enter the house of Charley Howard, or a house which was under the actual care, control, and management of Charley Howard, as charged in the indictment, with intent to commit theft, and without the consent of said Charley Howard, you will find defendant guilty of burglary," etc. A careful inspection of this last quoted charge will show that appellant has not been injured by the refusal of the court to give the charge complained of, since the charge of the court limited the consideration of the jury to the fact of a burglary committed by breaking. The special charge asked by appellant presents a correct proposition of law, but we think it is sufficiently covered by the main charge as above stated. A daytime burglary is not circumscribed by the illustrations of force used in the statute. If the door be shut, and simply held in position by its own pressure upon the side and facing, it is a sufficient force and breaking to constitute a daytime burglary to push, pull, or shove it open with burglarious intent. Sparks v. State, 34 Tex.Crim. Rep.; Edwards v. State, 32 Tex.Crim. Rep.; Daggett v. State, 39 Tex. Crim. 5.

Appellant insists the court should have charged on the law of accomplices. The house burglarized was alleged to be in the care and special ownership of Charley Howard. Appellant insists that said Howard consented to the entry of the house and taking the goods, and himself testified to this fact. Appellant contends these facts would make the prosecuting witness an accomplice. We do not agree with this position, since if any possession was violated it was the possession of Charley Howard. The court, as we understand it, presented the law in the following charge: "Even though you may find and believe from the testimony that defendant broke and entered the house of Charley Howard, as charged in the indictment, and he took therefrom the property as described in the indictment, yet, if you should further find and believe that Charley Howard consented and agreed to the taking of said property, you should acquit defendant." This is all the law that appellant could ask on the subject. In order to make Charley Howard an accomplice, the possession of the property would have to be in some one else than Howard, and he would have to assist, advise, or abet appellant in securing the property, and breaking the house. Here, however, he being in the actual control, possession and management of the property, if he consented to its taking then all the elements of burglary are lacking, and appellant would not be guilty of anything. The evidence is sufficient to support the verdict of the jury, and the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING. June 13, 1900.