State v. Robertson, 32 Tex. 159

State v. Robertson

32 Tex. 159 | Tex. | 1869

Lindsay, J.

We think the indictment in this case, though most inartistically drawn, was sufficient, under our Criminal Code, to have put the defendant upon his trial. Burglary, as therein defined, maybe committed by methods unknown to the common law, and is subject to degrees of punishment as varying as those methods of commission. First, it is defined to be “ entering a house by force, threats, or fraud, at night; or in like manner, by entering a house during the day, and remaining concealed therein until night, with the intent, in. either case, of committing a felony.” Second, “ he is guilty of burglary who, with intent to commit a felony by breaking, enters a house in the day time.” These definitions are certainly deficient in that precision and perspicuity of language which usually characterizes the definition of offenses in the Code. But we may gather from them, that either an entry in a house by force, fraud or threats, in the night, with a felonious intent; or such entry in the day, and concealment therein until night, with a felonious intent; or the entry in a house by breaking, in the day time, with such felonious intent-—-are alike denominated burglary by the Code. If the house so entered be any building, or structure, for public or private use, and not a dwelling house, each of these methods is the same species of burglary, and is obnoxious to the same penalty. But if a dwelling house be entered by either of these methods, the penalty is augmented, and is made a higher grade of the same offense. If the entry into any of these houses shall be by such force as would be, in common parlance, violence opposed to any person, or to any part of the house, the penalty may be double that of the burglarious entry of a mere house, or a dwelling house, as the case may be. The mere charge of an entry, by breaking, does not constitute that violence contemplated by the statute in the duplication of the penalty. The word breaking, used in the statute, and charged in an indictment, implies actual force, it is true; but it does not contemplate such force as would be denominated violence. The different articles of the chapter of the Code upon the subject of burglary, can not *163be harmonized without this construction of its provisions. The illustrations of the term “ breaking, ” in the statute itself, are “ the lifting of a latch,” “the raising of a window,” “ the entry at a chimney,” “ the introduction of a hand or instrument,” etc., evincing conclusively that it is used contradistinctive from force by violence. It must have been intended in this definition that, although some force is a necessary element in the constitution of the offense of burglary, yet the burglary committed by breaking is only such force as is sufficient to effect a clandestine entry. It is not such force as would excite alarm and provoke opposition, in which the penalty may be duplicated ; because, in such cases of violence it hazards the commission of other offenses, and ought to be more severely punished. This is the only mode of construction which cab make the chapter on burglary consistent with itself, and capable of any intelligent enforcement of its several provisions. In all cases the entry must be with a felonious intent, which felonious intent is manifested after the entry by the actual attempt, or commission of some specific felony, and which ought to be alleged, according to the facts of each case.

This indictment, though very in artificially drawn, nevertheless contains all the ingredients which combine to constitute burglary. Hot so plead, however, .as to make the accused amenable for the higher grades of burglary, but simple burglary in entering by breaking into a dwelling house, or any house, building, or structure, for public or private use, with a felonious intent, in the day time. The statute has given the word “ breaking ” in this connection a technical signification. Hence, under the second definition of burglary in the Code, Art. 2360, Paschal’s Digest, it is only necessary to charge the breaking and entering any of the enumerated houses in the statute, with a felonious intent, with a statement of the character of the felony intended, to imply such breaking, was in the daytime; because such conclusion is involved necessarily in this definition of burglary. The penalty being the same for every form of this species of burglary, whatever the char*164acter of the house which is invaded, the proof of the time and circumstances of the commission may be properly introduced under the general charge of the commission of this new species of burglary.

This indictment charges, in substance, that the accused “ did break and enter ” a “ dwelling house ” “ with the fraudulent intent to take and carry away ” certain specified “ corporeal personal property ” belonging to a designated person, of a certain value, without the consent of the owner, and with purpose to deprive him of it. This sets forth the nature of the burglary and the felony intended, and the charge embraces all the elements of the crime of burglary according to one of its definitions in the Criminal Code. The indictment was improperly quashed. The judgment is therefore reversed and remanded.

Reversed and remanded.