Loakman v. State
| Decision Date | 07 February 1894 |
| Citation | 25 S.W. 22 |
| Parties | LOAKMAN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Bexar county; G. H. Noonan, Judge.
C. J. Loakman was convicted of burglary, and appeals. Affirmed.
W. H. Brooker, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.
Defendant had previously been convicted of theft (25 S. W. 20) of the property taken from the house alleged to have been burglarized. Upon the call of this case, he interposed that conviction in bar of this prosecution. The court did not err in overruling the plea. Convictions for both offenses are expressly authorized by the statute. Pen. Code, arts. 712, 713. We have a line of decisions in this state, beginning with Shepherd's Case, 42 Tex. 501, holding, with the common law, that where the indictment charges both burglary and theft the theft would be included in the burglary, and that in such a case the conviction for burglary would be a bar to a subsequent prosecution for the theft. Robertson v. State, 6 Tex. App. 669; Struckman v. State, 7 Tex. App. 581; Howard v. State, 8 Tex. App. 447; Smith v. State, 22 Tex. App. 350, 3 S. W. 238; Shepherd v. State, 42 Tex. 501. Our statute provides that: "If a house be entered in such manner as that the entry comes within the definition of burglary, and the person guilty of such burglary shall after so entering, commit theft, or any other offense, he shall be punished for burglary, and also for whatever other offense is so committed." Pen. Code, art. 712. Again: "If the burglary was effected for the purpose of committing one felony, and the person guilty thereof shall, while in the house, commit another felony, he shall be punishable for any felony so committed as well as for the burglary." Id. art. 713. These statutes are evidently in conflict with the common law, with reference to the question at issue, and, being the authoritative legislation of this state, must and do abrogate all rules of procedure known to the common law that are in conflict with their provisions. The question of former conviction or former acquittal was not an issue in Shepherd's Case, supra. Therefore, the ruling of the supreme court adhering to the common-law rule in this respect could not be regarded as authority. The subsequent cases seem to have been the outgrowth of that decision, and are based upon it. The common law as to procedure, rules of construction, and questions of evidence have no force in this state, with reference to...
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