Cleland v. State

• Citation: 61 S.W. 492
• Parties: CLELAND v. STATE.
• Decision Date: 13 March 1901
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

61 S.W. 492

CLELAND v. STATE.

Court of Criminal Appeals of Texas.

March 13, 1901.

Appeal from district court, Upshur county; J. G. Russell, Judge.

Bluford Cleland was convicted of burglary, and he appeals. Reversed.

F. J. McCord, W. R. Heath, and Sam D. Snodgrass, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of burglary, and his punishment assessed at six years' confinement in the penitentiary. The indictment is in the usual form, under article 838, Pen. Code, charging a burglary, and does not contain an allegation that it was a private residence. The evidence adduced on the trial shows that the burglary was of a private residence. By the acts of the 26th legislature (Acts 1899, p. 318), articles 839a, 845a, and 845b were added to the Penal Code, whereby the burglary of a private residence at any time is made a separate and distinct offense, and providing a different punishment from burglary under article 838, Pen. Code. This being true, it becomes absolutely necessary to indict a defendant for burglarizing a private residence, if the proof shows that he burglarized a private residence. In other words, the indictment should be drawn under article 839a, instead of article 838, Pen.Code. This matter has been discussed in the cases of Osborn v. State, 61 S. W. 491, and Harvey v. State, Id. 492, just decided. Because there is a fatal variance between the allegations in the indictment and the proof, the judgment must be reversed and the cause remanded.