Litchfield v. State, 26395
| Decision Date | 27 May 1953 |
| Docket Number | No. 26395,26395 |
| Citation | 259 S.W.2d 228,159 Tex.Crim. 5 |
| Parties | LITCHFIELD v. STATE. |
| Court | Texas Court of Criminal Appeals |
Baldwin & Votaw, Beaumont, for appellant.
Ramie H. Griffin, Criminal Dist. Atty. and Joe B. Goodwin, Asst. Dist. Atty., Beaumont, Wesley Dice, State's Atty., of Austin, for the State.
The count of the indictment upon which the case was submitted to the jury alleged that appellant, on or about September 11, 1952, in Jefferson County, Texas, '* * * did then and there unlawfully by force, threats and fraud, and at night, burglariously and fraudulently break and enter a house then and there occupied by H. T. Larvey, without the consent of the said H. T. Larvey, and with the intent then and there of him, the said Earl Lee Litchfield, to use his mouth on the sexual parts of another human being, to-wit, Frances Larvey, a woman, then and there in said house, for the purpose of having carnal copulation, against the peace and dignity of the State.'
Under such indictment and the court's charge, the jury found appellant guilty of the offense of burglary of a private residence at night with intent to commit sodomy, and assessed his punishment at ten years in the penitentiary.
Judgment having been rendered on the verdict adjudging appellant guilty '* * * of the offense of Burglary of a Private Residence at Nighttime with Intent to Commit Sodomy as found by the jury, * * *' appellant was sentenced to serve a term of ten years.
It has long been the holding of this court that an indictment charging a violation of Art. 1391, P.C., defining the offense of burglary of a private residence must allege the burglarized premises to be a 'private residence.' Osborn v. State, 42 Tex.Cr.R. 557, 61 S.W. 491; Williams v. State, 42 Tex.Cr.R. 602, 61 S.W. 395, Id., 42 Tex.Cr.R. 602, 62 S.W. 1057.
Art. 1391, P.C., defining an offense declared therein to be a distinct offense from that of burglary as defined in Arts. 1389 and 1390, P.C., a conviction for the offense of burglary of a private residence at night cannot be sustained under an indictment which charges only the offense of burglary. See Crawford v. State, 127 Tex.Cr.R. 550, 78 S.W.2d 623, and cases cited.
The indictment being insufficient to support the conviction, the judgment is reversed and the cause remanded.
To continue reading
Request your trial
-
Aaron v. State, 51044
...Thomas v. State, 525 S.W.2d 172 (Tex.Cr.App.1975); Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1941); Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228 (1953); Ex parte Dies, 160 Tex.Cr.R. 468, 272 S.W.2d 373 (1954). Finally, the pen packet contains no judgments upon which senten......
-
United States v. Prejean, 73-2988.
...Criminal Appeals, the state's highest criminal tribunal. E. g., Bowie v. State, 401 S.W.2d 829 (Tex.Cr.App.1966); Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228 (1953); Shaffer v. State, 137 Tex.Cr.R. 476, 132 S.W.2d 263 (1939); Crawford v. State, 127 Tex.Cr.R. 550, 78 S.W.2d 623 (193......
-
Davis v. State
...and burglary of a private residence at night (as defined in Art. 1391, V.A.P.C.) are distinct and separate offenses. Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228. When not descriptive of that which is legally essential to the validity of an indictment or information, unnecessary wor......
-
People ex rel. Hadley v. New York State Dept. of Correction
...must allege the breaking and entering of a 'private residence'. Failing to do so, the indictment is not good. Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228. The indictments of which relator was convicted did not contain that essential allegation, so it was not a misdemeanor under New......