Crawford v. State

• Citation: 78 S.W.2d 623
• Decision Date: 23 January 1935
• Docket Number: No. 17158.,17158.
• Parties: CRAWFORD v. STATE.
• Court: Texas Court of Criminal Appeals

78 S.W.2d 623

CRAWFORD v. STATE.

No. 17158.

Court of Criminal Appeals of Texas.

January 23, 1935.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

Willie Crawford was convicted of burglary, and he appeals.

Reversed and remanded.

Cecil R. Glass and John C. Patterson, both of Marlin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for burglary; punishment assessed at two years in the penitentiary.

The indictment charges that appellant broke and entered a house occupied and controlled by Juan Samanigo with the intent to steal therefrom property belonging to Samanigo, and negativing by proper averments want of consent. It charged an ordinary burglary. Appellant advances the proposition that the evidence shows that if the house was burglarized it was the private residence of Samanigo and was entered in the nighttime, and that conviction for burglary of a private residence at night cannot be sustained under an ordinary indictment for burglary. The witnesses continually referred to the "house" as that of Juan Samanigo, and by him was referred to as his "home." The record shows that he and his wife were living there and that his wife had been taken to a hospital from the "home" on the night that the burglary is claimed to have occurred. Without further stating the testimony in detail, it appears almost conclusive that if the home of Samanigo was burglariously entered it must have been done in the nighttime.

Article 1391, P. C., defines the offense of "burglary" of a private residence at night and fixes the penalty therefor much higher than the ordinary burglary of a house, and in the very article defining the offense of a burglary of a private residence at night states that "such burglary is a distinct offense, and nothing making it such shall alter or repeal the two preceding articles," which articles define "ordinary burglary." It has been the consistent holding of this court since the offense of burglary of a private residence at night was defined and a different penalty from ordinary burglary attached thereto, and the proof showed a nighttime burglary of a private residence, a conviction could not be sustained under an indictment which charged only ordinary burglary. See Dodd v. State, 108 Tex. Cr. R. 375, 1 S.W.(2d) 292; Foster v. State, 110 Tex. Cr. R. 594, 9 S.W.(2d) 1037; Martin v. State, 123 Tex. Cr. R. 82, 57 S.W. (2d) 1104. Many other cases will be found referred to...