Gooden v. State

• Decision Date: 27 November 1940
• Docket Number: No. 21273.,21273.
• Citation: 145 S.W.2d 177
• Parties: GOODEN v. STATE.
• Court: Texas Court of Criminal Appeals

145 S.W.2d 177

GOODEN v. STATE.

No. 21273.

Court of Criminal Appeals of Texas.

November 27, 1940.

Appeal from District Court, Montgomery County; E. T. Murphy, Judge.

Fred Gooden, alias Booker Gooden, was convicted of burglary of a store, and he appeals.

Reversed and remanded.

R. G. Allen, of Houston (King C. Haynie, of Houston, of counsel on appeal only), for appellant.

W. C. McClain, Dist. Atty., and Ned G. Wallace, Asst. Dist. Atty., both of Conroe, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the burglary of a store owned and controlled by Roy Jackson in the town of Montgomery, Texas, and under further allegations of two prior convictions he was sentenced to the State penitentiary for life.

The indictment, in its charging part, alleges that appellant "in the County of Montgomery and State of Texas, did by force, threats and fraud, break and enter a house then and there occupied and controlled by J. Roy Jackson, without the consent of the said J. Roy Jackson, and with the intent then and there to fraudulently take therefrom corporeal personal property therein being, and then and there belonging to the said J. Roy Jackson," etc.

It will be noted that the present charged offense was burglary with intent to commit theft.

The trial court in its charge defined the offense of burglary in the terms of the statute, substantially stated as the entry of a house by means of force, threats or fraud with the intent to commit a felony or the crime of theft.

Again he instructed the jury that "the indictment in this case having charged that the burglarious entry was made with the intent to commit a felony or the crime of theft, before you would be warranted in finding a verdict of guilty you must be satisfied from the evidence, beyond a reasonable doubt, that the entry was made with the intent to commit a felony or the crime of theft."

Again the court's charge says: "Now, bearing in mind the foregoing definition, if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the 7th day of March 1940, as alleged, in the County of Montgomery and State of Texas, by force did enter the house of J. Roy Jackson as charged in the indictment, with the intent to commit a felony or the crime of theft, you will find him guilty of the crime of burglary, and so say by your verdict, and assess his punishment at confinement in the penitentiary not less than two nor more than twelve years."

It is to be noted however that no objections nor exceptions to the court's charge were taken nor filed. It is contended by appellant that for the trial court to authorize a conviction herein on a burglary with intent to commit a felony, when such was not charged in the indictment, was fundamental error, and an exception to the court's charge was not necessary.

That the giving of such a charge was error finds support in many decisions of this court. In the Williams case, Williams v. State, 53 Tex.Cr.R. 2, 108 S.W. 371, 372, Judge Davidson said: "But the error particularly emphasized is that the court authorized a conviction of appellant if he committed a felony, and that the allegations of the indictment did not authorize this portion of the charge, but that the charge did authorize a conviction of appellant outside of the allegations in the indictment, which confined his specific intent to a breaking with the intent to commit theft. This charge of the court constituted error. The indictment charged burglary with the intent to commit theft. There was no felony intent charged in the said indictment, and the court's charge authorized the jury to convict if they believed that either a felony was intended or the crime of theft. The court certainly could not have submitted to the jury any theory of intent to commit felony, unless it may have been theft. The property taken was of less value than $10. The court's charge authorized a conviction for an offense not charged, to wit, a...