*1 y. The State. 371 Shackbleobd 1918.2 himself the rule of facts discussion as to the admitted. Just within far the how comment the failure of prosecution may upon wife about facts while on the witness stand has been the of testify subject understood, decisions and well but none of the cases many fairly go far to hold that the failure of the wife to with reference enough testify of comment. testimony subject illegitimate not correct. on alibi is another trial a charge Upon proper will be given.
For the reasons indicated the judgment will reversed the cause remanded.
Reversed and remanded. George v. The State. 8,May
No. 4942. 1918. Decided Firearms—Indictment—Breaking. of —Burglary—Discharge 1. burglary by discharge committed for into An indictment .firearms house, etc., allege broke or that defendant which failed entered the house quash. on motion Qualifying offense is bad with a State, Hammons 58 Texas Crim. Texas Crim. Bailey v. App., 445. Judge, dissenting. Prendergast, Evidence—Charge —Same—Insufficiency Court. Where, burglary by discharge of firearms into upon the house of trial etc., shooting party defendant was another, the evidence showed house, and as towards the the bullet her injured struck purpose she missed shooting not constitute a into the house for the this could statute, of- as such injuring for the by into a house is constituted fense as to this effect therein, have instructed court should inmates requested. Tried before Court below Fayette. the District from Appeal H. Jeffrey. Hon. C. firearms, burglary by a conviction Appeal imprisonment penitentiary. three etc.; years penalty, the case. states Duncan, for appellant. T. John General, Hendricks, Attorney Assistant
B.E. Omitting formal DAVIDSON, the indict- dge. parts, Presiding Ju commit there unlawfully “did then and as follows: ment firearm, towit: a there discharging of burglary Shackelford, with and controlled occupied gun, Shackelford, the said the said Lizzie then in said against peace and there being then Lizzie Shackelford of the State." dignity Bepobts. 83 Texas Cbimustal [May, Motion was made this indictment. It will be noticed that quash there is no direct or entered the house allegation appellant broke with a view of offense. statute committing any Vernon’s (art. im. Cr the offense Stats.) this offense defining burglary says *2 is constituted by force, fraud, a house by threats or at entering night; or in like manner time, a house at either by entering any day or night, therein, and concealed remaining with the intent in either case of com a mitting felony or the crime of The theft. Code defines also thus burglary: who, "He is also of to guilty burglary with intent commit a or theft felony enters a by breaking, house So of daytime.” of a burglary residence. This must private force, be entered threats by fraud, or at or in manner night, a any by entering residence private time, either or and any day night, concealed therein until remaining night, intent, case, with the in either of a or committing felony, of theft. a committed, crime However be it must done burglary may be in this case by breaking, must be entry accomplished for the a purpose committing If these matters felony. are not charged the indictment is not averred. burglary The manner of is to one and the intent a entry thing, commit or the crime of felony theft is a different but the two must concur in proposition, order to the crime of constitute This has burglary. been the rule laid down in decisions, case, it unless Texas Crim. Rep., but indictment an of that as found in inspection original record case the construction that will bear must be properly charged That as to case from breaking. diverged the decisions theretofore rendered, down the rule that the intent need not laying be necessarily theft; with the intent to commit a or that if the felony breaking was house, a intended to into by shooting would -constitute bur The case, writer dissented in that glary. and still of the is opinion that the of the court in so was majority not holding consonance with as shown legislative will by statutory enactments. In the Railey case, 1, 58 Texas Crim. charging of the indictment part was appellant unlawfully, fraudulently, burglariously wilfully, force committed daytime, the offense by breaking, of burglary, firearms, there towit: a discharging by gun, dwelling Schmidt, house of Charles with intent to injure the said Charles Schmidt, was then and there in said A who etc. serious mis writer, mind of the take, majority opinion to the Bailey case, transfers the definition is that that into the defi entry it the nition makes criterion of intent. The burglary, Legis writer, intend, to did not lature, it occurs so and did not so enact. and intent are different elements of the offense.- entry Article 0., Branch’s Ann. P. defines relates to what it takes p. only constitute con to It is not "entry.” entry provided to fined the entrance of the of the whole it consist may entry body; for the it a or be-con part purpose'of may felony; into the by stituted firearms or other missile discharge deadly y. 1918.1 therein; it intent or injure any person with constituted may instrument for the introduction of any taking
by no of the of the although part house any personal property, body be introduced. should offender was Legislature simply be noticed that what defining
It will a an into the house as of the definition part constitute entry took or to the of bur definition referring breaking, It was not burglary. Illustrative, indictment not be that of except entry. glary, entered the if it burglariously valid simply held further his It would have to go entrance of body. any part and that it was done for commit allege breaking of theft. with of firearms crime So a felony ting simply was the term injure. Legislature defining with make unlawful when the done to It firing injure. such “entry” and not to include a bur burglary, intended prevent the house firearms into was intended to unless the shooting glary means of It was but a If entry. burglary. This was injure. *3 intent to into a house with injure somebody of firearms the shooting consummated; this be unlawful enacted that should Legislature was the relieve did not intend to thereby pleader properly It entry. of which was of the charge entry but a part pleading have offense. The indictment would further definition of the to and go such done for and was breaking prove entry allege law, This has been understood unless a felony. committing in case, virtue of decision changed majority Bailey it be the authorities have far as that been called to the attention So supra. two cases writer, there are but where a was proper not allegation in the intent The breaking: majority opin reference made with case, and Hammons 29 Texas supra, Crim. Bailey ion in the case was reversed under unbroken line The Hammons App., understands, case, in authorities, as the writer order overruled Hammons case. opinion, The majority to sustain error. clearly thinks that opinion writer instant case does not indictment undertake to allege conclusion he except by shot entry generally, stating
burglarious term injure. house with intent to as we “burglariously,” into the indictment, is just in this a general understand conclusion and does definition of There undertake must be a bur- give any burglary. must, element of which is then entry; a constituent there charged, glary addition, and intent felony, in no this indictment viewpoint From can crime of theft. mind writer, be upheld. other The court instructed There are case. the jury questions firearms, towit: a gun, if did into the house appellant Shackelford, with Lizzie the intent then occupied and controlled and defendant, the said there, Lizzie Shackel- on the of the part ford, and that the Shackelford was said Lizzie said Bepoets. 83 Texas Cbiminal [May, house, they will find him did and if not so guilty; they believe the evidence, beyond doubt, also reasonable He they acquit. charged the if believed from all the they evidence that defendant’s gun was that after dis- accidentally discharged, and such accidental charge that the defendant did not into the house occu- gun shoot pied and controlled Shackelford then by Lizzie with the and there to injure should Various they acquit. exceptions were urged to the court’s charge, instructions refused. These special requested all are properly presented. shows tent, evidence that Lizzie in a ap- Shackelford was
pellant her residence; child, was at called to his Lizzie had see Shackelford and defendant been divorced. the terms of having By divorce he entitled to see the child and was be at the where place occurred. When -the first was alleged shooting fired, shot which accidental, and appellant various reasons says gives it was so why facts, controverted, which seems not to have been Lizzie Shackel- residence, ford left tent the direction of her which was five or steps six fired another away, appellant shot. This shot struck roof, at the of the right through the edge going plank entering rafter on the inside of house. Lizzie just immediately Shackelford was not then in the this house which shot was fired. She was Her that direction. testified she was daughter outside of the house. Lizzie herself testified that she was about to just reach the entrance the house but not on the inside. Appellant submitted, insists this of.the ease should have been and requested instructions, as reserved this exceptions as well the court’s We are respect. appellant correct in this contention. In order to have constituted at her terms of the indictment, he would have had fire into the the purpose Shackelford. Hnder the State’s ease was a serious *4 he shot her to her all; whether at at as the question shot went her, above and he is shown to have been hunter and a shot. way good event,, in But in order to constitute this under offense the indict- ment, have he would had to shoot in the house for in- purpose Shackelford, and it was be in the juring necessary she he the time that fired shot. If he was at her shooting at on outside and the shot entered the it would not constitute in offense the indictment. charged proceeded upon The State’s case evidence, her under as she was theory, was shooting towards the house and the bullet missed and struck the house. in- This could not constitute a house for the shooting purpose her In juring words, other to constitute shot this offense as would have had be fired into the house for injuring she being house. This is not constituted at but by shooting her and missing the house. are striking Hnder this of the case we of opinion that the court should have submitted special requested instructions to the to the effect that unless the Ex Parte Little. 375 1918.} house was for the her and that at that time she was in the house would not find him they and if he guilty, was shooting at her and struck the this incidentally would not constitute an offense under the allegations indictment. is reversed and the judgment cause remanded.
Reversed and remanded. Judg PRENDERGAST, e. convinced —I amthoroughly that the case State, 58 Texas Bailey Rep., Crim. was correctly decided, and that it is I the law. do not concur in the criticism of that opinion by herein. I adhere to the decision in said case.
Ex Parte William Little. 8,May
No. 5032. Decided Contempt—Juvenile Delinquency—Neglect of Child—Civil Case—Jurisdic- tion. Where, corpus upon original filed proceedings, application habeas upon theory this court judgment proceeding was entered in Act, juvenile under the delinquency appeared proceeding but later grew controversy child, out of custody dependent neglected over of a jurisdiction courts, nature, and that and not in parte the same is civil in its the civil court, corpus Following of habeas Ex writ is denied. Mussett, Rep., 72 Texas and other Crim. cases.
From Bexar County.
Original habeas corpus release from proceedings asking custody a fine of one hundred dollars for contempt Court of County Bexar Texas. County, states opinion' the case.
Chambers, Reyes, Watson & for relator. Hendricks, E. General, B. Assistant Attorney Judge. MORROW, Relator applied for -a writ of habeas corpus seeking discharge an order of the county of Bexar judge County him adjudging The order guilty contempt. permitting appli cation to be filed was on the that the theory judgment was entered in under the proceeding juvenile Act. delinquency Vernon’s Texas C. C. P., 985, title p. 17. This Act has been construed criminal in its nature. McLoud, 394; Pruett, Ex 200 S. Ex W. parte Rep., parte S. W. 392; Miller v. Rep., S. W. McLaren v. State, 82 *5 Texas Crim. 449. Since the has been application supplemented by facts it out of a grew over appears proceeding controversy of a child. See Vernon’s Civil custody dependent neglected Stat 1, 2190, title utes, chap. vol. arts. 2184 to inclusive.