195 S.W. 192 | Tex. Crim. App. | 1917
The indictment charges that appellant did unlawfully by force, and at night, discharge firearms, towit: a gun, into the house of Walter Hill with the intent to injure him, the said Walter Hill, who was then and there in said house; the said house being then and there occupied and actually used by the said Walter Hill as a private residence, against the peace and dignity of the State.
It will be seen from the allegations that the pleader was undertaking to charge a violation of the statute which prohibits burglary at night of a private residence.
The statute provides that the punishment for this offense shall not be less than five years, fixing no maximum. The indictment is assailed in various ways, but substantially that it does not charge the elements of burglary of a private residence. Article 1305, Revised Penal Code, reads as follows: "The offense of burglary of a private residence is constituted by entering a private residence by force, threats or fraud, at night, or in any manner by entering a private residence at any time, either day or night, and remaining concealed therein until night, with the intent, in either case, of committing a felony, or the crime of theft." It will be noticed this statute limits the offense intended to be committed to a felony or theft. Article 1313 of the Penal Code provides: "Nothing in articles 1305 and 1312 shall be construed to alter or in any manner repeal articles 1303 and 1304, nor any part thereof, but shall be construed to make burglary of a private residence at night a separate and distinct offense from burglary as defined by articles 1303 and 1304. Article 1303 punishes burglary when committed by entering a house by force, threats or fraud at night, or by *239 entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft. Article 1304 punishes a daytime burglary by breaking with intent to commit a felony or theft."
So it will be seen that the statute with reference to burglary of a private house is an independent and separate offense from any other burglary. Branch's Crim. Law, sec. 159. The ordinary burglary indictment will not support a conviction for breaking a private residence, nor will an indictment for breaking a private residence sustain a conviction for any other burglary, either day or night, and this by express terms of the statute. The definition of a private residence is set out in article 1314 of the Penal Code. The decisions hold that daytime burglary of a private residence is not affected by the Act of June 5, 1899, relating to burglary of a private residence at night, but is left as an offense under the old statute defining burglary of a house. Branch's Crim. Law, sec. 159. These cases are collated also by Mr. Branch in his valuable Annotated Penal Code on page 1289 and section 2354. It is also held that where a private residence is burglarized in the daytime, it is an ordinary burglary, and punishment therefor is the same as for ordinary burglary. These cases are collated in the same section; and it is also the law that burglary of a private residence at night is a separate and distinct offense from the burglary at night of a house other than a private residence as defined by article 1303 of the Penal Code, and is a separate and distinct offense from burglary committed in the daytime by breaking and entering a house, whether a private residence or not, as defined by article 1304 of the Penal Code. Sustaining this, Mr. Branch in the same note has collated a great number of authorities. It was also held in Jones v. State,
We are cited to the cases of Garner v. State,
The judgment, therefore, will be reversed and the prosecution ordered dismissed.
Reversed and dismissed. *241