Bradford v. State , 138 S.W. 118 ( 1911 )

HARPER, J.

In this case appellant is charged by indictment with the offense of burglary. Upon a trial he was convicted, and his punishment assessed at two years in the penitentiary.

There is no statement of facts in the record. Consequently many of the grounds stated in the motion for a new trial cannot be considered by us. However, there are a number of bills of exception in the record, and to each we have given due consideration.

[1] There was no error in overruling the motion to quash the indictment. The indictment charged the offense of burglary with the intent to commit theft, and the decisions of this court all hold that in an ordinary burglary committed in the nighttime it is unnecessary" to allege that the entry was committed by means of breaking. The allegation that the entry was by force would be sufficient. Garner v. State, 31 Tex. Cr. R. 22, 19 S. W. 333; Summers v. State, 9 Tex. App. 396; Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395.

[2] In bill ;of exception No. 1, defendant complains of the admissibility of an alleged Confession. The confession nor any part thereof is not recited in the bill. There is no statement .of facts,.and, .the record being in this condition, it is impossible for us to rule on the matter..

[3] In bill No. 2 it is claimed that the court erred in not permitting Joe Armstrong to testify that he was the guilty person, and that defendant took no part in committing the burglary. The bill alleges that Joe Armstrong was a convicted felon, and was then serving a term in the penitentiary for participation in the same offense for which defendant was then on trial. If this is true, said witness under our laws was not a competent witness to any fact. Article 768, Code Or. Proc. 1895, and authorities collated under this article in White’s Procedure.

[4] In case of burglary with intent to commit theft, it is unnecessary to allege the value of the property, and the court’s charge need not require that the jury find that the property had any specific 'value. Sullivan v. State, 13 Tex. App. 462; Simms v. State, 2 Tex. App. 110; Green v. State, 21 Tex. App. 64, 17 S. W. 262; Collins v. State, 20 Tex. App. 197.

[5, 6] In bills of exception Nos. 4, 5, 6, 7, 8, and 9, defendant complains of a portion of the charge of the court and the failure, of the court to give certain special instructions requested. In the absence of a statement of facts, it is impossible for us to judge whether or not the special instructions should have been given; and it is the rule of this-court that, if the charge is applicable to any state of facts that could have been proven-under the allegations of the indictment, this court will assume that the court correctly applied the law to the facts in the case. Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004.

The bills of exception presenting no mat-, ter which shows error in the absence of a statement of facts, the judgment is affirmed.