No. 580. | Tex. Crim. App. | Dec 14, 1892
Appellant was convicted of burglary under an indictment charging the entry, by different counts, to have been made with intent to commit theft and rape.
1. The testimony discloses that defendant, at a late hour of the night, subsequent to the retirement of the family, entered the house by climbing in through an open window, elevated five feet or more from the ground, into the room where a young lady and younger sisters were sleeping. Ignorant of his presence in the room, the young lady arose, and lighted a lamp, heard a noise as if some one had fallen on the floor, looked, and discovered the defendant secreted between her bed and the wall. He did not touch her, but, on being discovered, fled from the house, escaping from the same window through which the entry had been accomplished. *362 There was a bureau, wardrobe, washstand, and some jewelry and clothing in the room. Nothing was taken from the room. The court submitted the case upon the different counts, and the jury returned a general verdict, finding defendant guilty. Among other things, the court charged the jury, with reference to the question of force: * * * "It is not necessary that there should be any actual breaking when the entry is made in the nighttime, but there must be some degree of force; however slight, force is sufficient. The entry by a chimney, or climbing through a window, or the entry at any unusual place, would constitute force."
This portion of the charge was excepted to, and a counter-charge requested, which was refused. In this there was no error. The doors to the room, which are the usual places of entry to said room, were closed on the night of the burglary. The window through which the entry was made, though open, was an unusual place of entrance. Penal Code, art. 708; Painter v. The State, 26 Texas Ct. App. 454[
A window may or not be a usual place of entering a house, but this is a question of fact to be solved by the testimony adduced on the trial. A window elevated five feet or more above the ground, as in this case, would be an unusual place of entry, especially when it is shown that the party who entered through it did so by climbing, in order to accomplish the entry. Painter v. The State, supra.
2. The verdict, being general, will be supported by testimony sustaining either count in the charge given. We think the evidence is sufficient to support the conviction under the count charging the entry with intent to commit theft. The intent with which the defendant entered the house is a fact for the jury, to be gathered from the circumstances attending the entry, and prior and subsequent thereto. The Supreme Court of California, in a case similar to the one in hand, said: "Though there was no direct evidence of the intent, it might be inferred from the surrounding circumstances. The weight to be given to these was a question properly left to the jury; and when a person enters a building through a window at a late hour of the night, after the lights are extinguished, and no explanation is given of his intent, it may well be inferred that his purpose was to commit larceny, such being the usual intent under such circumstances." The People v. Soto,
Mr. Archbold says: "Even the very fact of breaking and entering in the nighttime raises the presumption that it is done with the intent of stealing. Where a man, in the nighttime, had entered a house by the chimney, and was found in it just above the mantlepiece, and when he found he was detected he ascended the chimney again, and got out on the roof, the jury found him guilty of burglary with intent to steal, upon *363 this evidence alone, and the judges confirmed the conviction." 2 Archb. Crim. Prac. and Pl., p. 1107. We find no error in the record, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.