97 S.W.2d 955 | Tex. Crim. App. | 1936
Conviction for burglary; punishment, twelve years in the penitentiary.
Appellant is charged with burglary. The house alleged to have been entered was the home of a Mr. Pierce, in which, in the clothes closet, Pierce had a suit of clothes. On the trial he testified that on the day of the burglary he was at home practically all day, his family being in the country; that a few
To make this negro boy guilty of burglary it must be shown by testimony that he entered the house in question, or the closet in question, by the use of some degree of force applied to some part of the building. The slightest force would be sufficient. It is enough if he opened a door that was closed, or if he pushed further open a door not closed, or raised a window, or pulled or pushed open a screen door, or entered through a chimney or other unusual place; but there must be proof of some such entry.
We find in this record not one word about the condition of any other door to the house save one, and nothing about its condition when Pierce came back to it at eight o’clock p. m. which would indicate that it had been opened or entered. However, the jury might believe that appellant made entry through the door which Pierce believed he had pulled to, or through the self-closing screen door, in which case we would not be inclined to reverse the judgment if we had before us any testimony at all as to the condition of the windows and other doors or entrances to said house at the time.
It would seem incredible that a teacher such as Pierce, having a wife and family, and able to have a hired servant on the premises doing washing and ironing, — could live in a house having no windows or other entrances and only one door. No question was asked apparently, and no testimony appears, as to the condition of any other doors or entrances or of the windows. An entry in the daytime through an opened door, without force applied to the building, is not burglary. See cases cited in Branch’s Annotated P. C., Sec. 2337. Whether entry at an opened window is entry at an unusual place, is a question of fact, in the particular case, for the jury. Alexander v. State, 31 Texas Crim. Rep., 359; Davis v. State, 52 Texas Crim. Rep., 335; Russell v. State, 86 Texas Crim. Rep., 588.
The judgment is reversed and the cause remanded.
Reversed and remanded.