Hammons v. State
| Decision Date | 18 April 1891 |
| Citation | 16 S.W. 99 |
| Parties | HAMMONS v. STATE. |
| Court | Texas Court of Appeals |
Appellant was tried for and convicted of the offense of burglary. After setting out the formal parts, the indictment charges that the appellant, "on or about the 20th day of March, one thousand eight hundred and eighty-eight, * * * in the county of Haskell and state of Texas, did then and there unlawfully, at night, in the county and state aforesaid, by force, threats, and fraud break and enter a house there situate and occupied by R. A. Anderson, without the consent of the said R. A. Anderson, and did, with malice aforethought, make an assault in and upon said R. A. Anderson, and said house, with the intent then and there to murder the said R. A. Anderson, against the peace and dignity of the state." Appellant moved in arrest of judgment, and one of the grounds of said motion is based upon the failure of the indictment to allege the intent of the appellant at the time he broke and entered the house. "The offense of burglary is constituted by 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, and with the intent, in either case, of committing a felony or the crime of theft." Pen. Code, art. 704. "He is also guilty of burglary who, with intent to commit a felony or theft, by breaking, enters a house in the day-time." Pen. Code, art. 705.
It will be seen that in both of the above-quoted statutes the entry must be for the purpose and with the intent of committing a felony or the crime of theft. The intent, therefore, is an essential element of this offense. The indictment charges a breaking and entry, but fails to charge the intent of the defendant, in such breaking and entry. After charging the entry, the indictment further charges the offense of assault with intent to murder in all of its constituent elements. At common law this character of pleading was permitted. Reeves v. State, 7 Tex. App. 277, and cited authorities. Black v. State, 18 Tex. App. 127. This was also permitted in some of the states, while in other states it was not. Same authorities. In this the rule is that the facts constituting the offense must be stated with such certainty "as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Code Crim. Proc. art. 422. Our Code of Criminal Procedure further provides that "everything should be stated in an indictment which it is necessary to prove, but that which it is not necessary to prove need not be stated." Article 421. We have the further express statutory provision that, "where a particular intent is a material fact in the description of the offense, it must be stated in the indictment." Id. art. 423. It will be seen, by reference to the definition of the offense of "burglary," that the intent is the gist of the offense. It is one of the essential elements of the crime. Without it there can be no violation of the statute. It must be proved in order to sustain the conviction had under the statute. Without the intent to commit the felony or theft, the breaking and entry would not constitute the offense of burglary. The intent is as essential to the conviction as is the breaking or the entry. The intent with which the burglarious entry must be accompanied is of the essence of the offense, and is a fact which should be expressly alleged in the indictment, because it is a fact which is essential to be proved by the state. Black v. State, 18 Tex. App. 127. See, also, Reeves v. State, 7 Tex. App. 276. Evidence that a felony was committed is evidence that the house was broken and entered with intent to commit that offense, was the rule at common law. With us, however, the "intent" in burglary is of the essence of the offense; and must be proved like any other substantive fact, not, indeed, by express and positive testimony, but by the best evidence of which the case is susceptible; and this intent must be averred. Mahl v. State, 1 Tex. App. 128; Code Crim. Proc. art. 423; Pen. Code, art. 704. We must look alone to our statutory provisions when they speak upon the subject-matter of our inquiries with reference to pleadings in criminal cases or prosecutions. That a breaking and entry of a house may and could occur without a violation of our statute against burglary needs no argument to prove or demonstrate. It might easily be suggested that many breakings and entries into houses could and do occur in which no intention to commit either a felony or the crime of the theft ever entered the mind of ...
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