*1 REPORTS TEXAS CRIMINAL 1910. JANUARY, Railey T. L. v. 19, Decided June 1909. 4010.
No. 22, denied December 1909. Rehearing January refused 1910. of error Writ —Burglary—Indictment—Definition of Offense. 1. Code, burglary may be constituted discharge Penal Under into a deadly injure person missile house with intent to firearms .or of therein, injure felony; need be a necessary and it and the intent act was allege that such done intent to commit a indictment fel- that the injure per se to shoot into a house with intent to an occu- burglary ony, as it thereof, party pur- immaterial whether the had a felonious becomes pant Davidson, dissenting. Presiding Judge, pose or not. Abatement—Carving—Nolle Prosequi. 2.—Same—Plea burglary, upon charge based defendant had shot prosecution aIn thereof, injure occupant there was no error in into a house with prosse an indictment for assault with intent the State to nolle permitting murder who insisted transaction, defendant, objection over the upon the identical based first, placed assault upon being being tried for said before on trial burglary, charging him with as above stated. The State another on has the offense. right to carve the Construed—Burglary Defined. 3.—Same—Statutes offense, Code, separate and distinct Penal defines Article house, injure firearms into a with intent to there occupant se, of, 839, said article is but an addition to articles 838 and per Code, defining burglary. Following the offense of Garner in further Penal State, Distinguishing Hammons v. 29 Texas Rep., 22. Crim. Davidson, dissenting. Judge, Presiding 445. App., Crim. Stated—Sanctity of Home. 4.—Same—Case separate indictments based the same charged defendant Where murder, transaction, for assault with intent to indictments of such one gun dwelling into the by shooting alleging the other him, Schmidt, permitting no error in there was Charles prosecute defendant murder indictment assault to to dismiss State the for simply defendant immaterial whether it was alleged, and burglary, assault, object as the simple aggravated committed article home, im- Code, and it was sanctity of the the a felonious protect is to Penal intent or not whether material Davidson, dissenting. Presiding Judge, house. Crim.—1. LYIII. Vol. ¡Reports. Texas Criminal —Same—Jury Jury Law—Talesmen—Practice. Upon trial for where the court ordered a number of talesmen to be *2 complete regular panel jury, to summoned who were tested on their dire, refusing request voir there was no error in of defendant to have the therefrom; besides, jurors placed of all in a drawn names granted box and the court request insofar as the were talesmen concerned. 6.—Same—Evidence—Other Transactions. Where, upon burglary, trial for predicate defendant had not laid a to im- witness, peach violent prosecuting testimony there was no error in to excluding as profane language and conduct of State’s witness towards third party prior not involved in the case and at some time to the offense. —Same—Evidence—Insulting Relation—Reputation 7. Conduct to Eemale Prosecuting Witness. Where, upon trial for burglary shooting dwelling for into a house with intent witness, prosecuting it was no defense said witness had used wife, towards insulting language ordinarily conduct the defendant’s so assault, aggravated and the of testimony to reduce the offense to exclusion corroborating theory such' of defense was error. Attorney—Carving—Harmless 8.—Same—Evidence—District Error. Where, upon burglary shooting trial for for into a house with in- -permitted occupant, defense had been to introduce jure the in evidence the assault attorney district had dismissed the case of with intent fact that transaction, defendant, and was on the against murder based attorney permitting testify no error in district to his rea- there was dismissal, which was that the State could not carve two convic- for such sons facts; inadmissible, testimony, such while all out of the same besides tions harmless error. —Same—Evidence—Opinion of 9. Witness. rejected burglary, testimony opinion trial for where the was an of the Upon besides, witness, question improper, the form of the same testi- fact, witness, was, subsequent examination of the there mony was no error. elicited in 10.—Same—Election indictment, Where, one upon burglary, upon trial for two counts in the based jury, election. only was this constituted an of which submitted —Same—Argument of Counsel. 11. Where, counsel, burglary, jury, in his address to the upon trial for State’s objections interposed prevent the State the defendant technical stated facts, disregard jury court instructed the proving certain and the was no error. argument, there —Same—Argument of Counsel. 12. counsel, Where, closing argument, in his burglary, for the State’s trial always injected trial slop criminal get “Let us now rid stated: defendant,” said lan- jury consider and the court instructed by the was no error. guage, there —Same—Argument Quotation. of Counsel—Biblical 13. language Where, quoted defendant’s counsel upon trial me,” etc., coun- to come unto State’s little children “Suffer the Savior: vein, improper, was not sacrilegious while a somewhat replied thereto in sel error. reversible Jury—Evidence the Record. Dehors 14.—Same—Misconduct to in- with intent Where, by shooting into a house upon trial for jurors, who had been etc., permitted one jury in their retirement jure, diagrams intro- before, in addition to diagram, to draw building v. The State. not, circumstances, evidence, diagram duced in under the could defendant, reversible error. injuriously aflected the there was no rights —Same—Charge of Court—Self-Defense. Where, upon to in- in- trial of into a house etc., jure, respects properly presented the court all the law self-defense, cluding there was no error. Supreme 16.—Same—Writ of Error XT.S. Court Denied. See involving question for a case no writ of error Federal where Supreme Court of the United States denied. from the Criminal of Harris. Tried below Appeal District Court before the Hon. B. B. Campbell. from a
Appeal conviction of years impris- two burglary; penalty, onment in the penitentiary.
The State’s testimony showed that alleged the defendant and the injured were party neighbors; that they lived in suburbs the the Houston; that on city the the after- day difficulty, the noon, defendant’s drove wife a the the up in near fence of buggy witness to prosecuting horse; hitch her that the wit- prosecuting ness approached her to a collect bill of which defendant $5 owed him as the wheels, balance due on some which he had buggy sold defendant before; some wife time that defendant’s handed him and dollar, that $4; thereupon prosecutor asked for the other that she that business, that was her replied husband’s and that she then called witness prosecuting vile and names the witness slapped hand, with her and that when saw she could not reach she him with her hand she ran the to and tried buggy grabbed the and whip near get up the witness; fence to strike the that then the witness’s him, called attention, wife her hands his clapping to attract and he went into his house with wife, his and sat down to the table to eat that then supper; the defendant came to the window and shot window, through at the saying time bill going he was prose- witness; cuting the blinds of that window were open, the window down; was and the wire screen was up that witness prosecuting pretty badly weeks; hurt bed for several that kept some wife, the shot head grazed face and of witness’s but her in- were juries slight: testimony defendant, defense was his that just before fence,
wife drove into up out of got buggy went a saloon sixty fence; some feet his away from the that attention was called the altercation between his wife the prosecuting witness; wife, that saw said then he witness his and that slap immediately defendant ran to his scene of the difficulty; that him then wife told had her in prosecuting slapped witness and had called very very the face her names and used abusive vile her, whore; towards her bitch and a language calling as if to her defendant appeared over trying get Beports. Criminal her, fence to harm and that buggy she then went get whip; her hands in wife prosecutor clapped approval of her'- conduct, and went husband’s and that then both turned they into the house. After from his defendant statement wife became house and very excited, immediately much went his his got find to call shotgun witness proceeded prosecuting for an conduct, of his and for the further explanation defendant said witness for breach arresting peace (the of the an officer); defendant near the prosecuting went house answer, times, witness and called him several but received no as defendant saw the witness by the window passed prosecuting he he, reach for fired at him pistol, defendant, through no window; once; that defendant fired but that defendant witness, and could have done so killing intention prosecuting self-defense; intended; so had he shot simply him himself should the said Schmidt took his to defend gun explanation to assault him the course attempt wife; defend- his insulting demanded of him for Schmidt, and that ant violent temper knew was another reason for taking gun. the indictment “did unlaw- parts, alleged, out formal
Leaving daytime by wilfully, fully, fraudulently, burglariously then burglary, by force commit the offense breaking, firearms, into the wit, dwelling there gun, discharging Charles the said Schmidt, with to injure of Charles *4 house said Schmidt, house, who then and in said was there said Charles controlled by was then and there and the occupied Schmidt, said Charles Schmidt without the consent him, said T. of the part with the intent then and there the upon was then Schmidt, said Charles who Bailey, injure L. the to said there a within house.” person offense, etc., after the the
Among things, defining this case “In a' conviction in order to authorize charged jury: defendant only that must from the evidence not you believe Schmidt, but of the said Charles gun into house discharged a rea- "beyond find and from the evidence must further believe you said into said house gun doubt he discharged sonable that which the intent with Schmidt, the said the intent he did house, the said if said into gun discharged defendant offense.” of element so, being necessary the. gun fired a that the defendant yoü
“If believe from the evidence that should further believe Schmidt, Charles but into house or making the said Charles Schmidt was doing of so at the time attack defendant, from which make an attack about to thereof, it, or the apparent preparation and character the manner knowledge of character any, the defendant’s if dis-i The State. reasonably there Schmidt, Charles then and said it position was about Charles defendant said Schmidt appeared him, acting kill, bodily injury, or inflict serious upon death, or 'serious danger, such reasonable appearances Charles shot into the the said bodily injury, defendant house find, you so or you he and if if Schmidt, guilty, would not or thereof, find him not you guilty; have a will reasonable doubt did fire the defendant if from the should believe that you evidence Schmidt, but gun you into house of the Charles did the time he further find and from the at evidence believe from it defendant the acts and con- reasonably so appeared Schmidt,' Schmidt, he, the said Charles duct the said Charles which to gun obtain make assault attempting was defendant, it then and there reasonably appeared danger to the that he was then and there immediate of death or serious as the such threatened injury result bodily attack and fired for the such gun preventing he assault, find, and if or you would not be so threatened guilty, doubt, find him In if will you you guilty. reasonable you connection whether charged question are was, death or bodily not, reasonably danger injury serious as set the defendant forth apparent foregoing paragraph fired Charles charge, gun time he Schmidt, so, find did should be considered and you determined the defendant’s is immaterial whether such standpoint, not, reasonably was real or it was to the provided apparent danger was defendant, reasonably apparent and if such to him from danger not be to retreat required his he would order standpoint, Schmidt, you are avoid the said while to view as to danger reasonably whether question apparent and as it standpoint defendant from reasonably appeared matter will take you into consideration him, determining and circumstances all the facts evidence. Brockman, Kahn & and A. S. McGregor T. H. Williams for appellant. Branch, The court,in its original and E. T.
Fisher herein,' in fact written erro its opinion, issues construed erroneously involved and neously adjudicated *5 Code, erroneously and 841 Penal and of articles 838 the the effect “intent,” breaking” “force and the means of substituted is law, (which only 838 article in which, in under article éntry defines “intent” which Texas, which an statutes burglary), to constitute must accompany in order be made must to constitute breaking, “ulterior purpose” as the breaking “force and breaking” whether the entry, burglary, of an any species a or any window, battering door, raising down the be Reports. Criminal in 840 and mentioned articles methods modes other entry Code, “it consist may Penal including felony,” including a committing part purpose constituted wit, may “or above, it provision following house, deadly of firearms or missile into the All of methods injure any intent therein.” person in a suffi and modes mentioned the statutes which the test of made, to be and in them force is are breaking complete cient selves constitute se force but none of “per breaking,” with which such methods have to do with the “intent” anything in done, is to found article is breaking 839a, alone, of all the statutes 839 and articles necessary of “intent” in any defines the character subject, species within the definition entry bring breaking a breaking of a burglary. “intent” a and it the “ulterior” is mere breaking trespass,
The characterizes accompanied with which such breaking statutes, under must be not, “intent,” our burglarious a felony. to commit either theft or intent,
Unless article 841 is and not of entry general a article herein, contended then the this case does as otherwise of a dwelling an for the reason that charge burglary offense can not be committed the statute residence) house (private firearms affixed for same. by discharging punishment of a article is not less private residence this burglary 845a and has no maximum limit. it will be seen at years five So than for the severity burglary the punishment glance is much than house. greater residence private case was of two given years penalty appellant shows if the offense yet the record was com- penitentiary in a all, private it was committed residence. mitted at So case, affixed, in this under a punishment prescribed jury of a residence. private statute for the So the different unlawful for this punishment, affixed reason punishment be reversed. also 841 is a definition of and an “entry,”
That article mere addition “entry” of the word as used in 838 and to and articles explanation settled the Mason 100 S. W. Rep., is well court Williams v. 53 Texas Crim. by this Rep., followed Brooks, court, for the “The Judge speaking says: In the Mason case 841 and 842 are simply amplifications articles and ex subsequent the legislative is clearly of article to be planations of all the articles reading from careful conjointly deduced or intended by the expressed Legislature effect that no 838.” And again reads: “We are modify 841 did abrogate hold that article intend to constrained *6 7 v. The State. an 838, of but amplification upon, article was simply terms express In Williams an and of 838.” addition to article explanation fol- Mason Davidson, supra, Judge 841 articles 840 and are not lowed. cases hold that intended These and do not offense, merely explanatory an are creating restrict or abrogate article necessary to constitute a must be burglarious entry
The intent 838, to commit a article and no mere felony theft according “entry” or illustration of an can subsequent “abrogate” explanation and 841 terms article 838. Articles 840 are couched plain terms, in clear and an than unambiguous and no more create offense some in the Code of Criminal Procedure. construc- definition The is all that articles “entry” tion definition placed upon (which 840 and has 841 been held to be not are), always explanatory creative of a offense. Article 840 defines as one separate “entry” without free consent has been occupant, made did often held that definition with or dispense abrogate “force,” the element of as used article but that every element contained article 838 burglary as must be proven. ablest of One these is Hamilton opinions State, 11 Hurt, App., Crim. which Judge court, re articles, views all these and in which he says: “Articles 704 and 705 838 and define (now 839) the offense. Articles 706 and 707 entry. 840 and (now 841) object define these purpose two articles is to define illustrate that which constitutes an entry; matter subject which mind of legislator is acting and about speaking entry, force” (page on the 121); again same page says: is com “Burglary 1st, 2d, posed, entry; means resorted to to effect entry; 3d, the or intent of And find entry. we authors and in their Supreme Courts opinions, treating great each of length these subdivisions as separate distinct matters(Italics ours.)
If articles and 841 made 840 the acts therein defined penal offense it would be to enter an door, or to open put house, hand a hole in a through regardless intent. Nor do articles 840 and penalty affixed law of written meant they were to define offenses would be in violation of of the Penal Code. they article That are not intended themselves offenses is penal shown affix failure thereto, and penalty they are explanations, mere and not in- tended to “abrogate” the elements of the offense as made by article clearly by is shown out set reasoning the Mason Hamilton cases. under our can Burglary, not be Code, committed unless be that denounced and no definition can add to or the “intent.” “entry” abrogate self-defense is right right God-given laws Eeports. 58 Texas Criminal *7 beasts,
man has to wild custom away. taught can not take Instinct it A shooting to all nations and to man enlightened reason people. a be injure,” into house in would “with intent to shooting self-defense of In be no offense. the guilty original opinion would the bar, was made se to shoot into burglary per at the it say a house the the home. sanctity of injure, protect assassin The of home is lost the screens himself sanctity ' therein and at one on the outside. Even that ambush against shoots would have the house “with intent to shoot into right one a home never intended as to defend himself. injure” place The a where man could himself ambush shoot down place a nor would it be enemy; sanctuary or even a passerby of the occu- citizen his wife act carnal intercourse with see such as could him from therein, willing unwilling, prevent pant to kill man under such circum- shooting into house even stances, 0., art. nor plain statute 672), gives right; as the (P. home and it a man could strike his ever intended that leave insult her vile neighbor’s epithets, Seeing wife be house, on husband approach protected his own the husband. called on to explain least as so makes “sanctuary” long The home is a occupant had intended to make so. If the Legislature it se, it would burglarj- have been injure” per house “with done definition original burglary. having Hot included in the element, wit, can not be entry, so, mere definition one article. original into the read back charge the authorities an to be sufficient to indictment,
Under all made burglary, allege “entry” must been offense have. a felony either case or the crime committing the intent “with which falls short of and an indictment theft,” specifically defective, fatally such “intent” will distinctly alleging arrest, conviction, and, motion in must fall. upon support was held for a good in the Garner case night- indictment was not one the constituents “breaking” because time case, Hammons was held offense; and in the the indictment of that failed to the “intent” of allege because it for burglary, bad the house.” The ob- the time he “broke entered defendant at raised, as it was in the to have been Garner seems jection terms,” “in “the allege, specific failed to to have been bur- alleged enter” break and defendant did that no part is apparent So glarized. very “dicta;” gist essence contrary, Hammons case bad for indictment was because burglary,' decision and entered the “broke “intent” with alleged. house” was not light other than “fur- not be any can construed Article 1910.] The State. articles it harmonious with the “entry” to make
ther defining” construction, articles settled rule and, a well of chapter harmony give so construed subject must be the same all, if that possible. and effect to
To illustrate: reads: body.” of the whole entry confined to entrance
“The is not entry any consist of the may “It it? the (What “entry”) a felony.” committing part may it? constituted “entry”) “Or it (What house, with intent missile into deadly of firearms or other therein.” person *8 the intro- may “Or it it? the be constituted “entry”) (What of a house for the any taking duction of instrument no of offender although body part personal property, should be introduced.” every
The above statute shows that very part language solely “entry” intended to define character singly 838, 839 defined in articles and 839a by which “burglaries” State, 124; v. 18 Texas Crim. may App., be Black committed. 120; 18 Crim. 2d Cr. State, Allen v. Texas New App., Bishop 32 110; State, Texas, 159; v. Law, 66, Robertson Mason v. sec. p. 383; State, v. 29 100 Hammons Texas Crim. State, S. W. Rep., State, 313; 445; v. 8 Texas Crim. Murray Albrecht App., App., v. 15 State, 520; State, Texas, McLelland v. 21 Texas Crim. App., 454; 319; State, 18 Texas Crim. Robinson v. Var v. App., Smith State, 4 nell, Texas, 382; 161; 16 v. Texas Crim. App., Tompkins 387; v. 53 Gress, Texas, State, Williams v. 53 Texas Crim. De State State, 563; 2; 9 Texas Crim. Vaughan App., v. Rep., Stephanes 206; State, Jenkins, Cal., v. 16 People 21 Texas Crim. App., v. 551; Bell, 29 431; Vermont, Iowa, 316; 16 State v. v. Cooper, State Mass., 244; 2 al., Bishop’s Law, et 7 New Crim. v. Newell sec Com. 171-172; 555; State, 6 v. Cyc., Anderson 90; C., pp. Hale P. tion Law, 110-113; New Crim. sections 1 665; 2 Ala., Bishop’s 48 Inst., 63; 4 ed., 129; Comm., 3 Black. 223- Hawk., C. Curw. P. ed., 795; 1 Law, 174; 3 Gab. Crim. 224; Crimes, Eng. 1 Russell on Law, 342; 26 Am. & section Eng. Ency. Crim. New 1 Bishop’s ed., 616. 2d Law, of the Garner court, paragraph in concluding opinion, 1 Crim. which we State, App., Texas v. Searcy
cites attention to discussed, that, call the fact we again heretofore case, the indictment alleged entry in Garner case, there committing “with the intent then been to have etc., wholly wit,” allegation wanting which felony,' bar, and, therefore, insufficient, in the case indictment Reports. 58 Criminal 10 motion in judgment arrest of should and this appellant’s prevail be case reversed and dismissed. specific should alleged, be and where there be may “intents,”
two and one of them would be sufficient amount felony, or there may where be an intent embracing two or more degrees, one which might misdemeanor in a case alleged or breaking, prosecuted indict covering “intent,” ment latter and not under an indictment could, as which in this one of intents comprehend as, illustration, inherent the transaction degrees assault murder, and the lower degree assault, which aggravated are both in the facts constituting transaction, inherent yet in this case as construed its opinion herein excludes the assault aggravated issue and deprives appellant of his fundamental right whatever of or defense mitigation be, is, in, inherent facts may by, made of the trans-. action; in this case by pursued prosecution, course by the him has been judgment against deprived this right. Law, 94, 2 New 116, 117; Crim. v. Bishop’s Wilburn 237; Texas, State, 305; v. Whaley Texas Crim. App., State, 40 W., Texas Crim. Chatman Rep., S. defendant went the deceased Where the armed and resulted, house, occurred on the gallery court reversed on this and the ground, also issue of deceased manslaughter, although home,' and this court *9 held in that case did “sanctity” of the home not deprive defenses, defendant of his legal are these two elements in at strong bar as in v. fully Keith case. Keith 50 State, 63; State, Texas Crim. Nix v. 45 Texas Crim. Rep., Rep., 504, 227; State, 78 S. W. Mitchell v. 49 Rep., Texas Crim. Rep., 43; State, 96 v. 52 535, S. W. Texas Rep., Stewart Crim. Rep., 273, 685; State, 106 379, S. W. Lee v. 55 Texas Crim. Rep., Rep., Quinn 1153; 116 State, 209, W. v. 50 Rep., S. Texas Crim. Rep., State, 96 33; W. Shannon v. 35 S. Texas Crim. 2. Rep., Rep., question jury On of misconduct as to evidence dehors receiving State, Buessing 85; the record: v. 43 Texas Crim. Mc Rep., 32 State, 269; State, Williams v. Texas Crim. Lankster v. Rep., 43 298; State, Texas Crim. v. 42 Ysaguirre Texas Crim. Rep., Rep., 38 253; State, 986; Terry State, v. S. W. Hefner v. 44 Rep., Texas 441; State, Crim. v. 43 Hughes 511; Texas Crim. Rep., Rep., 296; State, v. 44 Crim. State, Texas Blocker v. Hughes Rep., 61 391; State, v. 36 Texas 278; S. W. Mitchell Crim. Rep., Rep., State, 573; v. 46 Texas Crim. 46 State, Dixon Logan Rep., v. Texas 310; 79 S. State, Crim. W. Gilford v. 49 Rep., Rep., Texas 424; State, 92 v. 59 Crim. W. Favro Rep., Rep., S. S. W. Rep., State, 49 Crim. v. 84 S. W. Rep., 885; Rep., Hambright 11 v. State, 53 711; Hardiman v. State, Rep., 81 W. 598; Riley v. S. defend- as to testimony of rejecting 121. On question S. W. Rep., State, 45 v. conduct: Poole violent language ant’s previous State, 423; 30 Texas Crim. 348; App., v. Berry Texas Crim. Rep., question 756. On State, Rep., admitting 70 S. v. W. Williams State, Texas Crim. v. attorney: Drake testimony of district Texas Crim. S. W. Rep., 265; Martin App., Rep., best, facts was but a disclose at trespass.
The breaking is the of our worst, policy assault. It law only aggravated at fit Had been crime. appellant punishment his identical assault, facts punishment, for an prosecuted a sentence, fine and could, jail been while would, or here have same facts he is given on the the offense calling This furnishes also strong argument to the penitentiary. sentence intended to be offense favor our contention com- in a felony. mitted must be McCord, Gibons,
W. G. Love and J. W. F. J. Assistant Attorney- General, It would been wholly unnecessary for the State. “with to have used words intent to injure makers law they only injure meant any person say therein” aof That felony. such manner as to make the defendant sort guilty foolish and useless would have been because without legislation prosecuted a defendant could be under article 838 provision an assault murder which is about the that would offense could into a with the felony shooting that one commit house intent Cited cases majority opinion. injure. Appellant was of
BROOKS, Judge, convicted years two confinement the penitentiary. assessed punishment The first counts. charges burglary The indictment contains two Charles Schmidt dwelling gun Schmidt; the second count charges Charles did and enter with break appellant L. Railey, T. did he, this: That then felony commit wit, firearms, into the said dwelling a gun, there *10 Schmidt, then thereby with the said Charles house of the said Charles Schmidt. kill and murder the unlawfully to in the indictment. count alone the submitted first 1 this cause complains Bill of No. before was exceptions call, being district upon attorney cause 15548 trial, No. called cause No. 15548 dismissing said pending his filed nolle prosequi was with charged defendant assault with a court, this wherein Schmidt, case, injured party this alleged Charles upon gun Schmidt, murder said Charles alleged alleged to Reports. 58 Criminal County, in Harris on the 30th of day April, to occurred facts as Texas, was identical upon and which cause based the same transaction, into the 'the of this to wit: are basis Schmidt, and to which Charles alleged party, house of the injured objected the district defendant prosequi, by attorney, motion to nolle based being upon that said cause No. ground same identical facts and the identical transaction upon based, to the indictment was was important . cause a fair determination this case that said judicial of charge not de- cause No. 15548 be tried of whether or first the issue murder, to or of fendant, of assault guilty, guilty aggravated assault, able guilty, determined, be to might former court such jeopardy former present pleas under a acquittal, might jury as arise the verdict of 15548; of said No. because cause prosecution offense law defined articles Code, could entry Penal constituted an unlawful theft, felony, the intent to commit or a in said jury No. 15548 find cause defendant assault under guilty aggravated in evidence facts in this and it is here stated as a fact that defendant then there claimed that the facts which would be ’ behalf show, adduced on trial on would defendant immediately injured Charles prior shooting, alleged party, Schmidt, in view slapped" the wife defendant the face defendant, distant, defendant at 200 or 300 time feet names, also called defendant’s wife vile conduct insulting said names was made known to defendant as as he soon was, where his wife he having, reached place immediately upon wife, said Schmidt his seeing slap gone hastily towards where said were, his Schmidt and on his wife said Schmidt approach house, own into his wife, went followed his own and upon his, defendant’s, where getting was, defendant wife she stated Schmidt, said him that in addition her, to striking had called whore,’ ‘a ‘a her bitch’ and and had used other insulting language her, and towards and that greatly outraged by matters, immediately house, said went his own which was a few said occurred, within feet where assault shot- got and went gun premises Schmidt, the said and called him from come gate out the house that wanted to him, and no see went hearing response through the gate yard surrounding immediate of said house and towards Schmidt house, said the door and had passed beyond certain window said towards door when he heard going the voice of said Schmidt in said about said window, and back turning stepping ato him window saw said point opposite Schmidt and called to house, come out him, he wanted to see and *11 v. The State. according pistol, to reach then made demonstration a Schmidt a saw which defendant testified he testimony defendant, to the Schmidt, called to and that defendant lying on the near said table fired him to not one stop, stopping said Schmidt which was loaded with small shotgun, barrel of double-barreled shot, Schmidt, being barrel loaded but not dis- said the other reason he did fire and defendant that not said charged, stating barrel, him from doing, other there was to nothing prevent barrel, fired first that saw, was that he after any intend to make further Schmidt did not to appear attempt then, said house injure him, defendant, to into could not felony, could a and therefore constitute not amount to to act of entry burglary such an would constitute the go Code, articles 838 and 841 of the Penal as defined law it to cause No. 15548 first in order to necessary try ascertain the above facts. insists,
As Penal Code 838 of the appellant provides by force, is constituted the entrance of house threats burglary felony or fraud with intent to commit a theft. crime is also guilty of the Code provides Article Penal who, intent commit a or theft felony breaking, with burglary Article 840 of Penal Code daytime. enters the house in an not there should be actual necessary is provides it offense of burglary, except to constitute the breaking entry Article is entry daytime. provides is made may consist body. the whole It not confined entrance felony, for the entry any committing part deadly of firearms or discharge it be constituted may by the injure therein. person house intent missiles into the with the not define a separate article 841 does contends that Appellant articles 839 and and that offense, but is explanatory distinct a felony to commit the intent unless there can not be firearms into the theft, and, therefore, discharge crime of or the necessarily injure an injure, intent with house unless there was would felony, State, 31 Crim. In the of Garner case felonious purpose. 707 of our Penal Code “Article language: used we Rep., article 841 of the present corresponds number which old (the declares that burglary, entry what constitutes Code) defining deadly or other of firearms discharge be constituted may fit therein/ house, person missile firearms into statute, Under this provision se per therein person injure any with intent and essen necessary entry that all force constitutes is, that Our conclusion that crime. tial counsel reason stated appellant’s defective, for' is not *12 14 Eeporís. Texas Criminal to in his motion are of quash; we further it suffi opinion, a ciently charges of into a burglary by discharge firearms house with intent to therein. injure the indictment persons The is the same as that used a offense substantially language similar of 1 the case v. Texas Crim. and which Searcy App., indictment was be by. to of the pronounced good court in that case.” hold that article 841 an We is but addition to articles 838 and and that the true construction to be it upon placed would to make article 838 read as follows: The of offense bur constituted a house glary by force, threats fraud entering or in a like manner night, or a entering remaining house con cealed with intent in either therein to a or felony commit theft, crime it be may or constituted firearms or other a deadly into house missile with intent to injure therein. itself person The same provides Code must construed as harmonious whole one and each thereof provision given (cid:127) validity force without to regard the distinction that existed at common law between the construction civil and criminal stat construction, In rule utes. of this both light statutory common we hold it would a strained law, construction to hold that the intent to injure felony must since be a this would the liberal destroy evident intent of the law. wording Article 838 if says one enters with intent house commit felony and then guilty, article which makes it a to shoot burglary firearms into with intent an building injure occupant was clearly intended to set building, designed the offense up or mode and method of committing crime In burglary. State, 29 of Hammond v. Texas Crim. the case App., a con have been laid verse rule down appears announced, to that here (cid:127) said last cited reading careful decision would show it was articles 838 and there under consideration and not 841, and any article expressions opinion to the contrary So, be dicta. clearly appear reverting action of the dis of in complained trict the above bill of attorney, we exceptions, did not err in say court the dismissal of the permitting assault carve, with intent to murder since the State can in drawing defined indictments, its any out offense statute given facts, state dismiss either one of indictments and try for if the other. it se to shoot Centainly, per burglary house therein, injure any person would become utterly immaterial whether murder assault. In appellant guilty or words, se into a shoot being per thereof, an" it becomes injure occupant immaterial whether not, and had a felonious or if party purpose appellant being apprised wife, offered his indignities shot at insults the prosecuting first witness meeting only be aggravated jRailey assault, facts feature, simple waiving the still these would become injure party immaterial he intended to house. object Code of the Penal was to protect sanctity of home and ruthless to punish into same where so anyone purpose of doing follows, therefore, It home house. occupant err, did the dis- any standpoint, permitting attorney trict to dismiss above discussed.
Bill of Ho. 2 matter, of the same in sub- exceptions complains stance, discussed in bill Ho. 1. *13 Bill of Ho. 3 exceptions regular panel jurors that complains
for the week been tested on having their voir dire as to their quali- fications, and only twenty-two having qualified, twenty- court ordered five- talesmen to in to be on voir brought tested dire out their of which list complete twenty-four names, from which list and parties select of said jury, thirteen talesmen jurors having defendant qualified, requested then the court to have the names of said twenty-two jurors and all of regular panel said talesmen who had and qualified in the box shaken placed up and drawn from box in the until a regular way twenty- panel four was which completed, request the court refused grant as to twenty-two regular said but did jurors, grant request said insofar as the names of two additional securing jurors from said list of talesmen was was concerned. There no in error ruling of court.
Bill of Ho. 6 exceptions complains that defendant called having Frost, Frank who as duly behalf, was sworn a witness in his and who testified that he knew witness, Schmidt, Charles complaining wife, and he, witness, his and a certain occasion when said Schmidt had taken up horse witness went to the place Schmidt, Schmidt, residence of and that said the said without excuse, him, a loud and provocation spoke angry or in manner to but in Mexican and not understand lan- spoke could violent, the conduct of Schmidt was tes- guage, but the said which timony, given, was, upon after it was motion stricken out, time; over the defendant at and objection made appel- lant further offered said above said witness the facts prove testified, further, he had and said to which wife of Schmidt connection, said time and in to strike the attempted at witness, excuse, or and which was also without which provocation and would have had he been testimony given permitted; witness and to be in was then there stated offered contra- testimony said diction of the statement of the Schmidt he was not mad, case, as claimed defendant in this and man that ever got that he violent or or or con- language never used indecent profane duct to or was anyone, towards and wife never violent Reports. Texas Criminal of, conduct, and and as an said impeachment Schmidt
language as witnesses as shedding light upon his wife at of said his said the time said conduct Schmidt wife probable defendant, claimed assaulted the Schmidt wife wife, his, witness, defendant’s Willie Schubert. We and his admissible. Previous altercations testimony think this do could not on this light different throw parties said If had laid a predicate impeach question. appellant prose- a, Schmidt, Schmidt had not had asking witness said if he cuting then witness been witness, with the said could intro- difficulty on said isolated in- question, duced to Schmidt impeach the rules compliance quarrels stances of temper reputation. of evidence prove
Bill Ho. shows the defense introduced three wit- exceptions nesses, each of whom testified to the bad general reputation Schmidt, quiet injured Charles alleged party, peace resides, and defendant then offered to community they and all of said witnesses ac- further each were prove and his habits and disposition general with said Schmidt’s quainted violent, and indecent using language reputation profane others, he was specially angered towards conduct to time stated to the court to at the. be offered anyone, bad Schmidt reputation connection with the general *14 on issue of as the the conduct bearing general and quiet, peace of the the wife of defendant at time alleged said the the Schmidt to defendant, and the alleged on the wife assault of Schmidt of defendant of vile and insulting the wife use said Schmidt and occurred, the shooting a few moments before just language, the time of conduct said Schmidt at on bearing probable as the defendant. Under the facts said Schmidt shooting alleged the material, since, as testimony this this do not think case we_ only to corroborate fact could the above, testimony go the stated wife, assaulted and witness had appellant’s prosecuting that the into a to shoot house to prose- it se being burglary per immaterial, it witness, becomes since testimony then the cuting theory that assault the. appellant’s serve to corroborate could murder; an with intent assault an and assault aggravated immaterial whether discussed, it being and under the statute above assault, then follows aggravated an to murder or it was assault was immaterial. testimony that of the same error Ho. 8 exceptions complains practically
Bill of admit prosecuting in refusing reputation above bill. in discussed witness as Love, shows that W. district attor- Ho. 11 G. exceptions Bill of State, as a witness in behalf on the stand ney, being rebutting testimony, testify State’s permitted state in cause indictments dismissing his reasons jury that first assault alleging 15548 and cause Bo. Bo. Charles injured party, alleged with a gun upon defendant an assault with said same second, Schmidt, charging and the Schmidt, both of which based were Mrs. Charles intent upon was, because basis of this prosecution, on basis of said prosecution, same facts were judgment, in his and that could not the State prosecution," the basis of this that are facts, for that convictions” carve “two out defendant try and elected to he nolle said indictments reason pressed offered, cause, testimony the indictment in this ground it was defendant objected and before given, witness, and was admitting of said same was the opinion evidence, as witness the jury of said before opinion case, defendant was guilty judgment opinion defendant in this according had convicted jury when the witness could not then to said of said the State facts, and out of the same the same carve “another conviction” facts, and that the nolle was not the statement of any prosequi entered, reasons for their being entered in said causes stated the irrelevant, of said witness was immaterial the said opinion fact or incompetent prove evidence issue objections court overruled the witness was permitted case. The detailed. This bill allowed with the testify following above “The in causes Bos. 15548 and 15549 qualification: (cid:127) to, with the motions the district together attorney, referred the same had been admitted in on behalf of evidence nol-prosse objection testimony over the above admitted on behalf of objected to was the State to explain said cases been nolle district jury why pressed by of the court’s attorney.” Certainly, light explanation, all, testimony attorney error at of the district was harmless. insisted The defense had the indictments upon introducing charging with intent with assault to murder upon prosecuting appellant wife, and witness and his the reasons of the district attor- Schmidt *15 for same and it could do no harm ney to nolle-prossing amplify for the indictments. of the reasons . Bone testi- nolle-prossing the however, before the It mony, ought gone jury. to have is a matter of the with addressed to discretion court and which jury the the do, but certainly, had on earth to can not nothing appellant com- indictments were introduced and after the reasons for plain, introduced, also that the district attorney nolle-prossing explained to the jury.
Bill of Bo. 12 shows that witness, State’s exceptions Jack on the stand for the State its Hagerman, being rebutting testi- LVIII. Vol. Grim.—2. BepoMs. 58 Texas Criminal {January, cross-examination, having said on witness and
mony, day of occurrence in the alleged testified on cause, place,” he known the “Jones’ place in this went to the as witness, what occurred the State’s which was between sight Schmidt, wife, immediately preceded Charles and defendant’s which her and he defendant’s wife at and buggy saw shooting, that horse, and saw buggy her her her grab whip apparently unhitching her and fence her foot on the first buggy out of to and go put fence with the going whip board as if she was over get hand, say was unhitching in her that would not that he she time, to that and State’s horse, or what occurred wit prior Schmidt, Charles testified defendant’s wife ness, that having slapped times fence and 'he back each jumped at three across the that him that she ran her and time, grabbed and then buggy whip _wife it, back and defendant’s having and came the fence then said her at fence and started Schmidt slapped testified that fence, and went if to over the that she then get buggy intention of herself as best defending her whip got fence to continue could said Schmidt he cross the against she her; testified that did the witness further he assault his witness, Schubert, a small boy defendant’s Willie about eight not see was old, who had that he gone testified present 3rears had been was, Mrs. take her some meat left Bailey where Mrs. Bailey at mother’s for a butcher his absence said Mrs. and that heard Schmidt call “a Baile3q Mrs. he names, and saw and “a whore” him ugly bitch” and some home, his her, and that he then left went to mother slap over “Jones’ then place,” said defendant asked upstairs living “If question: boy little Hagerman following says witness there, you out wouldn’t undertake to was dispute was he he the witness would have you?” question would not, so, do had he been if the little boy answered permitted it, and which was at was there he would the time dispute for defendant be offered testing stated boy would to which the witness assert the little was extent assault alleged upon, at the time of insulting present witness, wife Charles towards, defendant’s State’s conduct inadmissible; utterly it called testimony This Schmidt. bill, however, approves witness. court' question the form of the objected also State stating (cid:127) objections sustained as to and the being improper, stated to counsel question, the form of witness any question questions ask the might the time whether or not said Willie boy, fact Schu would elicit the or whether place, at said time witness bert, present counsel for defendant did propound and thereafter boy, saw *16 The testi- following witness which elicited said questions to proper not say him: “I will undertake that mony from not do that I not will boy, Schubert); there to said Willie (referring now; I I him there.” did not say that see refusing
Bill court erred complains No. exceptions elect which State to to sustain motion appellant require conviction. in the' would relied count indictment. first count m the The court submitted the merely This cured error in the court. surely any ruling Bill of No. 14 exceptions complains argued that State technical jury objections as follows: defendant interposes The and in certain way State from facts. proving prevents This “After explanation: objection bill allowed this above, used set out in- language the court structed jury not consider and at the con- argument, clusion the argument, request, at defendant’s gave jury instruction No. defendant’s them special again instructing they should consider said language.” not cured explanation any error Bill No. 15 possible argument. in sub- complains stance to same facts as bill No. those stated in
Bill No. 16 exceptions of the complains substance following State: closing argument by statement us now “Let rid get injected in a slop always criminal trial by the defendant.” this says bill that after explanation the objec- tion used, of defendant out, as above language set the court instructed not to consider said jury argument, at the con- clusion of argument, at defendant’s request, gave to the defendant’s instruction jury No. special again them instructing consider they This bill language. and bill No. complain practically matter. In the light court none of explanation argument was prejudicial to appellant.
Bill of No. 19 exceptions shows that defense counsel in course of his argument, after children stating truthful, are usually stated said, Savior “Suffer little me, children come unto for of such are In kingdom of Heaven.” this, reply to State’s used counsel “The language: Gentleman who uttered the ‘suffer me, little expression, children come unto is the Heaven,’ lived kingdom of two nearly years thousand ago, and did know of juvenile laws of Texas, courts and of the been who have boys juveniled small law.” Waiving suggestion counsel, sacrilege the State’s we do not think error retort made there upon appellant’s argument.
Bill of No. 21 exceptions complains of the misconduct of the who, after retired consider their they verdict, jury received *17 Reports. Criminal character, other defendant, a material in of absence of evidence cause, this, in to wit: of this adduced the trial
than that or names defendant whose name one, more, jurors said or of his or their own which drew a diagram 'is to now give, unable introduced in evidence the two diagrams was substituted at the the said Schmidt was time interior of room in which been fired, diagrams having said substituted one shot witness, the other Schmidt, the State’s drawn reviewed the matter We have carefully complained J. A. Toss. one of the jurors in this and think that mere fact bill and had some personal when it was constructed building been on the injured and could not location, appel- its did not have knowledge of had of location knowledge lant for him to state record, says of this building, light appellant since injured window attempted reached the party a frequently him with is called gun, pistol shoot pistol The defendant’s he fired for gun, self-preservation. offered indignities appellant’s he fired on account of is that in suggested by jury we see nothing plat wife. So course, in Of rights. could the remotest appellant’s additional evidence that injuriously is well settled that question affect the of a is injuriously rights affects could One or were intro- to reverse more ground maps case. proper long bill this matter too voluminous duced. presenting The say there was no error Suffice copy opinion. Furthermore, the bill mat- presenting prejudicial appellant. signed judge. ter does not appear in all properly the court the law charge respects presents case, and doctrine reasonable presents appearances well as from the defendant’s danger standpoint, actual danger each reasonable doubt behalf of jury resolve anthorizing reviewed seriatim all of carefully appellant’s We appellant. contentions, and do not believe there error this record is in all reversal authorizing judgment, things affirmed. Affirmed. denied December 1909.—Reporter.]
[Rehearing ERROR U. SUPREME PETITION POR WRIT OP TO S. COURT. ON January 1910.
DAVIDSON, the opinion that Presiding there in this case as question presented appellant’s Federal is no peti- error, petition for a writ denied and praj^er tion writ is refused. for said application Kailey y. The 19W\
January Judge Presiding mo- am of DAVIDSON, (dissenting).—I and, therefore, enter respectfully should be rehearing granted, tion for of the judgment. dissent to the affirmance my Allison, Messrs. Fisher & appellant, the case attorneys Brockman, Williams, and T. H. have force- McGregor, Kahn & reasons affirmance ably why fully, clearly presented I think their argument set aside. After their reviewing unanswerable, and present sound. Their conclusions are reasoning *18 manner, in such concisely, logical involved the questions so I even able to do so to add unnecessary would were it be I, therefore, is contained in said brief. adopt what anything their as in the as follows: my argument, dissenting opinion “To at construction of article proper understanding arrive 841, it becomes and consider law was necessary examine the as it enactment of such and its companion the article articles to the before Code also different Acts of the re- relating burglary; Legislature Code, the the adoption of the lating expressed opinions codifiers, well different as as construction placed upon different ‘learned the law* and by lawyers articles of the Code who, as either or judges lawyers judges, contemporaneous were Code, of the the time of the law before adoption adoption consider, All of this thereto. we wish to for subsequent at the intent, how such intent arriving legislative was, by duty by construed those whose gathered professional duties, at, or other and determine such intent. arrive construe 21, “The first law was that of burglary (in Texas) December 105, 115, 1836, Hartley’s Digest, and is found as follows: page any shall break and enter into ‘Every dwelling-house, who or person chattels, take store, by feloniously any goods, therefrom night, value, shall deemed guilty other articles of be money, or Thus shall suffer death.’ the law read until conviction thereof and on 20, 1848, 1849, law, Act of March 1, when the became the January shall, any night-time, ‘That if break and person as follows: crime, commit any the punish- any dwelling-house, enter death, hard or confinement labour in may whereof ment five years, for a term of not less than nor more than penitentiary, years.’ fifteen crime, any with intent to commit any person, punish-
‘That labour be confinement to hard may penitentiary, whereof ment break and enter night-time any shall in the larceny, to commit or vessel within store, warehouse, any lying body or or office, shop, to hard confinement labour in punished by he shall county, any one nor more year, of not less than than term penitentiary, years.’ ten enter, or in break shall, day- in the night-time
‘If any person Reports. Texas Criminal time break and or any any enter outhouse dwelling-house, adjoining thereto, office, store, mill, any shop, warehouse, meet cottongin, any courthouse, ing-house, townhouse, schoolhouse, or college, academy, building use, erected vessel public within any lying body therein county, larceny, shall commit he shall be pun ished hard confinement to labour penitentiary for a term not less one year, 116, than nor more Hartley’s than years.' Digest, five p. articles 108, 109, 110. This continued as the law until 28th 1856, August, ‘Penal Code’ A deal effect. great went of confusion was Therefore, found prior systematize exist thereto. 1854, laws of 11th of Legislature February, State enactment, for a provided codification laws of this Harris, Messrs. all Hartley Willie, able were lawyers, ap as codifiers. The pointed Code of 1856 result of is the these labors. However, amendments were many Legislature made before thereof. Title 143 and adoption Chapter 144 of the pp. Penal codifiers, Code were adopted as these substantially reported but article added by amendment, 725a was as an the Legislature will from the enrolled bill appear filed with the Secretary Legislature evidently not satisfied with the definition ‘entry5 defined in article mind suffi its full *19 ciently fully The offense of complete. however, defined, defined by articles, article 724 725. two Under these as entry, no however unless with an wrongful, intent to commit coupled Code, could the felony burglary. Shortly be after of adoption the Act Legislature, 1858, the of 15th of February, the by again pro laws, vided for the of classification arrangement, printing the codification, the further required proper not ‘Besides required, force, laws in contain in the it shall titles smaller the'appropriate type, and the of of laws the Texas repealed Republic by, through, State which, also, or under accrued; have of rights the colonization laws Texas, in Mexico and Coahuila which were force before Dec the Marginal *20 after the model of from 1836 on were the common offenses made ing different of the articles comparison an examination By law. 142, in the law of as found on burglary, embraced pp. and principles 1856, it be seen to Penal Code of will be a re- 144 of 143 and the law. illustrate: The of To offense burglary the common of hash ‘A as follows: the breaking entering law defined is common with intent some another in commit night, the mansion-house felonious be executed not.’ same, whether such intent or within felony Edition, 1, 1896. The Crimes, vol. International p. Bussell short of that will do. a felony. Nothing must to commit entry an thing burglary no such without can law there At common' felony. Bussell, to commit a nor without entry, entry Beports. Texas Criminal second vol. above entry section, first chapter, speaking to, necessary ‘With to con- says: entering referred respect least, entry stitute it the either with burglary: agreed any, hand, foot, the of the or or with instru- any body, any whole part a felony, introduced for the weapon, purpose committing ment 10. And it is admitted that ‘Though will be sufficient/ Page again, kill, thereby in at a window with intent person putting pistol a sufficient to constitute a it has been entry burglary, yet makes window, whether if he without and the should shoot questioned in, is, however, bullet come be sufficient. It elsewhere entry would laid a loaded down house is a gun sufficient Now, 11. find in the first instance a definition of here we entry,’ p. in- entry wherever of the in the second burglary, speaks stance, it is with a felonious intent. The mode entry coupled It is not itself. That burglary. committing with the intent constitutes the The absence of together burglary. either offense. call attention of court to Bus- destroys the We title on for the the lawyers sell’s purpose showing 1856, and who codified law of Legislature adopted Code, law and men from law lawyers common common States, did view to it conform as nearly so make as possible— offense, but not to the common law construction only given when called to construe of those There- the courts offenses. upon it, inserted 726 in the Code and fore, they article adopted common construction in they now law article, as a and intended such definition of but as view means of entering purpose committing burglary. one us look to Oldham & White’s which was Now, Digest, let compiled February, 1858, stated, Act of the as before in obedience to the 15th both Wheeler and Judges Bell, judges which was approved Court, with such acts that two of compliance the Supreme bear in work. must mind that We approve judges Messrs. Oldham required and White to February, place Act section and subject containing notes each indicating ‘marginal did, This subject.’ they which be- to laws references enactment the law part demonstrating legislative came by *21 25 v. The State. and Now, 725, we turn in Oldham to articles 724 and as found - White, find articles we these two marginal showing notes that offense and define the we turn articles 725a burglary. When find term *22 Reports. 26 Criminal of each facts case.’ next is that of the State according Williams, Texas, 98, v. Robert 41 an by judg State from appeal indictment, lower ment of the quashing judgment affirmed, Devine lan opinion, wherein this Judge rendering used: entry by is ‘The mere into a house force guage night time, however risk trespass, great per however great or to the intruder is injury may be, nothing sonal nevertheless danger a more than misdemeanor. To the act there constitute (burglary) committed, be some or facts felony must evidence being a some an act intention, intent commit or evidencing felony, being a entrance, with the unlawful the crime coupled burglary. constitute commit No such a attempt felony charged indictment.’ day, -was one of Judge early great Devine came to Texas at State, familiar with our lawyers thoroughly system, understood enactments, law, common as well as our and he legislative indulged idle he said ‘there must be of a in no remark when some evidence committed, felony or some fact evidencing to commit being case is that of felony entry.’ with the The next Wilburn v. coupled State, Texas, Reeves, Texan, also an 'old 237, who opinion by Judge laws, says with our and who familiar thoroughly opinion, to constitute ‘there must be a felonious breaking entry, burglary, intent; and intention felony it is not material whether to commit a effect, carried into actually only by demonstrated the attempt act, decided from facts in some overt to be jury evidence.’ to the cases so far all prior These referred were amendment of v. 1 Texas Crim. App., In Ector Searcy the case Judge of the court ‘We think says: the indictment rendering one for under Paschal’s good (art. burglary Digest’ 841). By an examination indictment that case be it will did Searcy wilfully, seen that then and there Steve felo unlawfully, firearms, certain niously burglariously discharge namely, pistol, into the Nelson with the wilful dwelling-house Paulingman, house, felonious intent then to commit felony there said he, the did then there namely, Searcy, said pistol said discharge house, aforesaid, wilful felonious him, Steve of his Searcy, malice part aforethought, murder,’ then and Code, there to etc. When we turn our Penal White, annotated by years see. who was for p. Judge court, we find of this the form of Presiding Judge given was had entry when the of firearms. In burglary it alleged form will be seen facts must be to show the going felony. It is to refer au unnecessary intention to commit a to other thorities. that at common law to say Suffice it to constitute burglary our there must be a definition of entry felonious up present time to constitute the entry either felonious or to commit must shown to be theft. Such heretofore, all of our courts interpretation put upon it those learned in the intended that evidently being it profession, our Act as to assimilate itself as near as possible law, that of the common it should made clearly appear court that it, construction this court can give is the one that has in this before it will adopted be authorized to overthrow the construction placed heretofore law of burglary.
“The construction that this court has given to 726 (841) destroys absolutely Therefore, of self-defense. if right such be article, this purport such was intention Legisla- ture, then such article should be held to nugatory be because no law in making power Texas, or anywhere else can take from a away citizen to defend himself right attack, from an unlawful or from what to him an unlawful appears attack. Let us see is what logical of this A holding result court. is the street walking along B, with no interfering his, one. enemy raises the window of house to fire A. If A begins returns upon that fire self- defense, under definition, this he is If guilty burglary. he does return fire, he is in danger the loss of his life or serious If it be injury. hold, of this court to so then it is un- law, either supported by or reason. logic, Why? He fires into B’s house with B. injure The into the firearm with is, the intent definition, under this se bur- per and the glary, fact that he fired in self-defense would be no defense under decision, this because the principal issue evidence, as made the defendant fired into he himself, Schmidt’s house fired in defense of because thought that his life was in If defendant had danger. been charged assault murder, with intent would had a defense; complete being charged he acted though in self-defense and facts, the same he is state guilty without any whatever, defensive rights the evidence which would him acquit murder, of assault with intent is not admissible in a charge This court burglary. ought time long hesitate a before making such a as it radical this case.” departure doing A herein, to be rehearing ought granted the former set opinion aside, and the judgment court below reversed and this prose- cution dismissed.
I wish further K~a.hu to state Brockman, that Messrs. & Williams filed very able exhaustive briefs arguments in addition to set in my dissent covering out and other questions, as did Hon. T. H. which have McGregor, been of great service in re- to me discussed, viewing question there at the arriving conclusion reached. Owing great length these briefs and arguments, Reports. Texas Criminal January, [ been they have not will, embodied in They dissenting opinion.
however, be perpetuated the official report of in such form the case and manner authorized law in regard to briefs in reporting cases.
For above I stated, my reasons enter dissent.
Morris Emerson v. The State. January
No. 323. Decided Burglary—Practice Appeal. Appeals Criminal Court of will not reverse a ease where there is no given criticised, charge, statement of facts the court’s applicable in could be might to dictment. of facts introduced allegations state the in- District Court of Tarrant. Tried
Appeal below before Hon. W. T. Simmons. from conviction of five Appeal burglary; penalty, years impris- onment in the penitentiary. states the case.
Ho brief on file appellant. A. John Assistant Motley, Attorney-General, for the State. Presiding Judge. DAVIDSON, This convictionwas for burglary, punishment assessed five being' years confinement the peni tentiary.
The record is before us without statement of facts or bill of ex- The ceptions. questions mentioned in motion new trial can not be revised in the given absence evidence. charge The appli- cable state facts provable allegations the indict- ment. This will not reverse of facts where the statement us, not before criticised could be charge given applicable state of facts introduced under might the allegations As indictment. the record is find no presented to us we error. therefore, is affirmed. judgment,
Affirmed. Long Tom January No. Decided 1910. * Law—Hearsay Tiger.
Sunday Evidence—Blind . competent place While it was for the to have identified him officer shown witness, by versations liquor Sunday, yet as that where latter obtained the con- liquor what did out of a and details witness getting laration of Texas. notes the Independence indicating section, and each references to laws the subject containing upon of such, and at foot of referring if there be the each subject, page, in to decisions the Court which there been Supreme judicial the of have of or section to which such notes are attached/ interpretation the Act White, two who stood in lawyers high pro Messrs. Oldham the which, fession, work, selected do the upon being were completed, course, of authority subject became standard so remained (of the Legislature) up as were made the changes subsequently to such - 1879, were recodified. No were changes when laws made the 1876, at which time definition of from 1856 to words burglary 21, were added of August ‘or crime Act Prior of theft’ entry a felonious would constitute bur short of time nothing repealed making but as that time law glary, Legislature v. The State. also to felony, incorporate from it became necessary theft a house into and defi- crime of theft’ as a part ‘intent to commit This us now ‘Is the question: nition of brings the offense. to injure any of firearms into with intent dwelling-house intent, a felonious se therein, per burglary in the absence of person 838, 841, when in connection articles under article construed was the enactment 839,’ legislative If such etc.? 841, of this court majority right opinion then was predicated. which the conviction sustaining define article 841 modes only attempts If on other hand itself, this case then ought not the offense entry reversed and dismissed. be seem, from the “Strange may judicial as it it does appear observed, State, so as have higher records courts of this far we from when for the law was violated 1836 to its first a ease offense made involving appearance time style Texas, of Portwood Court under Supreme which was an from a by the State the lower court appeal judgment in that the" indictment. quashing construing of the offense herein says: law ‘It is an essential intended ingredient charged to be the house should entered This averred the words committing felony. statute no our judicial interpretation While we have (Italics ours.) from we eminent up yet courts as much lawyers carry weight such time which expressed during Harris, Willie, under the judicial procedure, sanction of men Paschal, all, Oldham, Wheeler, Pease, all, Bell and or nearly White, as to legislative themselves and as to expressed whom construction different articles of the given proper in mind Texas Code. must be that while was not Penal borne It State,’ law most of her came here yet people who from ‘common law prevailed. They common were States where were the civil law to and knew nothing prevailing accustomed hence, most of the statutes describ- independence, declared her
Notes
as to each article. notes marginal indicating These legislative were carried into and section afterwards became of each subject construction he, as an Digest, showing of Paschal’s a part the legislative intent. lawyer, placed upon and learned Not able have been carried forward into since, the Codes of they that, but facts referred to for the These are show- 1879 and articles, different upon these placed only by construction ing codify laws, duty whose lawyers, learned therein. subjects embraced legislating upon the Legislatures different
we notes ‘These define marginal articles saying, ‘entry.’ Then are that 725a justified we articles contending and themselves, do within not, attempt complete define the .726 offense of turn burglary, but one of its constituents? When we only Code find the given same construction to articles we 704, 705, 706 and which in that Code took the of articles place 724, 725, Now, 725a and 726 of White. Oldham & the codifiers were five of adorned lawyers that Code the ablest who ever the bench or bar of Ferris, Bassett, Texas. J. H. A. Will- They were W. B. S. son, Clark and C. George They S. West. were known not their and great care. learning, system They painstaking construction, adopted before, was as said that placed upon the legislative Paschal, intent men as Oldham and others. stated, “As before lawyers,- States, these from being common law and they knowing that at law common understanding felony was a no statute prior dispensed with a intent, felonious and only'then in cases of except theft, commit the class of men the different forming Legislatures, also from law being States, common it is hardly they presumable would so make radical a departure the common law as to make one of the offense, the elements of namely, se, entry, burglary, per thereby changing whole scope character of the offense as it We, therefore, existed at common law. submit respectfully taking most those learned and who interpretation profession, main were with different enactments above contemporaneous to, referred give safe to law legislative it by such men. interpretation given “Now, us let examine interpretation given courts. As was before, the first case is that of Portwood. A decision by Judge who came to Texas Donley, early day, ranked as a high lawyer, frequently was member Legislature 1860. He prior laws, contemporaneous with enactment those his opinion it much We weight. carries with refer this respectfully court to affirmed, case wherein the judgment sustaining judgment lower court the indictment. next quashing case is Robinson, Texas, the State Lindsey, Judge wherein indictment sustained (the alleging did feloniously John Bobinson force arms break enter of Frank who said in the dwelling-house Bobinson), opinion, p. entry ‘In all cases the must be intent, felonious after entry by felonious intent manifested. the actual attempt, commission of felony, ought some specific alleged,