Hobbs v. State
| Citation | 44 Tex. 353 |
| Parties | WILLIAM HOBBS v. THE STATE. |
| Decision Date | 01 January 1875 |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Wood. Tried below before the Hon. Z. Norton.
D. W. Crow, for appellant.
A. J. Peeler, Assistant Attorney General, for the State.
Under our statute the punishment of burglary varies with the character of the house, the degree of force used, and the circumstances of the case. “When the house entered is not a dwelling-house,” the punishment is confinement in the penitentiary not less than two nor more than five years; but if it be a dwelling-house, the term is not less than three nor more than ten years. (Paschal's Dig., art. 2366.) If after entry the offense of theft be committed, the punishment is not less than two nor more than seven years in the penitentiary. (Paschal's Dig., art. 2369.) Article 2367 reads: Evidently the force or violence which is thus made to aggravate the offense is something more than the “actual force” or “slightest force” sufficient to constitute a breaking in ordinary burglary. (Paschal's Dig., art. 2363.)
To subject a party to the increased punishment affixed in the article last cited, the indictment should contain an averment that the entry was effected by force, to wit, by violence opposed to some person or some part of the house, as the case might be. The principle that “the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted,” as asserted by Mr. Bishop, has heretofore been recognized by this court. (1 Bishop's Cr. Prac., sec. 81; The State v. Etheridge, Austin Term, 1875; Long v. The State, 36 Tex., 9.)
It follows that under an indictment for burglary, not charging that the entry was effected by force, it would be error for the court to instruct the jury, as was done in this case, that if the defendant “effected an entry by force you may assess the punishment by imprisonment in the penitentiary for any period of time not less than two nor longer than ten years.” The indictment is in the ordinary form, charging that defendant “with force and arms the storehouse of A. Wolf and F. Wolf, situate in the town of Quitman, fraudulently, feloniously, and burglariously did break and enter.” The averments are those appropriate to a burglarious entry without violence, and one not...
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Apprendi v New Jersey
...agreed that Bishop had accurately captured the common-law understanding of what facts are elements of a crime. See, e.g., Hobbs v. State, 44 Tex. 353, 354 (1875) (favorably quoting 1 Bishop, Criminal Procedure §81); Maguire v. State, 47 Md. 485, 497 (1878) (approvingly citing different Bish......
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Alleyne v. United States
...a sentence falling within the original sentencing range (i.e., the range applicable without that aggravating fact). Cf. Hobbs v. State, 44 Tex. 353 (1875) (reversing conviction where the defendant was indicted for a crime punishable by 2 to 5 years and sentenced to 3 years because the trial......
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Doyle v. State
...State, 13 Tex.App. 466 (Ct.App.1883): "The charge of the court being radically defective, the judgment is reversed..." See also Hobbs v. State, 44 Tex. 353 (1875). Nevertheless, as I have demonstrated in my concurring opinion in Wilson v. State, 625 S.W.2d 311, 334 (Tex.Cr.App.1981), thirty......
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Alleyne v. United States
...a sentence falling within the original sentencing range ( i.e., the range applicable without that aggravating fact). Cf. Hobbs v. State, 44 Tex. 353 (1875) (reversing conviction where the defendant was indicted for a crime punishable by 2 to 5 years and sentenced to 3 years because the tria......