Marquis v. Benfer
| Decision Date | 19 December 1956 |
| Docket Number | No. 13060,13060 |
| Citation | 298 S.W.2d 601 |
| Parties | A. R. MARQUIS, Appellant, v. Daniel BENFER, Appellee. |
| Court | Texas Court of Appeals |
Arnold W. Franklin, Jourdanton, Harry J. Schulz, Three Rivers, for appellant.
Golder H. Russell, Walter F. Rudeloff, San Antonio, for appellee.
This is a spring gun or mantrap case. A. R. Marquis, appellant herein, was the owner of a tract of land, upon which he had his home, located about twenty-five miles south of Tilden in McMullen County. He was often away from home, and during his absence thieves would break into the house and steal his property. He reported these instances to the sheriff of the county, but it had not been possible to apprehend the culprits. In July, 1954, Marquis found it necessary to be away from home, so he set a spring gun inside his house and pointed it in the direction of the front door, which was securely locked with two strong locks. The gun was so set that if any one opened the front door it would fire in that direction.
Daniel Benfer, appellee herein, was a trapper of predatory animals and was trapping in the vicinity of appellant's home. On or about July 21, 1954, appellee went to appellant's house during the daytime in a pick-up truck, and leaving his elderly father sitting in the truck went to the front door of appellant's home, opened the door and was shot by the spring gun. The locks on the front door were broken but appellee testified that he did not break them. He testified that his purpose in going to the house was to inspect it and see if he would like to rent it.
The jury found, among other things, in effect, that appellee in attempting to open the door to appellant's house did so with the intention of inspecting the same with a view of renting it for living quarters, and that he did not intend to steal therefrom personal property belonging to appellant.
Based upon the jury verdict, the trial court rendered judgment in appellee's favor in the sum of $7,500, from which judgment A. R. Marquis has prosecuted this appeal.
Appellant's first contention is that the trial court erred in not granting his motion for an instructed verdict. In passing upon this question we must view the testimony in a light most favorable to appellee and disregard that testimony which is to the contrary. When this is done we find that appellant set a spring gun in his house and left it there, both day and night, so set that if the front door of his house was opened as much as two inches the gun would fire in the direction of the door. At the time the gun was set the front door was securely closed by two locks, but thereafter someone other than appellee broke these locks. Appellee desired to rent appellant's home and went there in the daytime, with no felonious intent and with no intent to commit the offense of theft, but only for the purpose of inspecting the house to see if he would like to rent it. When he opened the front door the spring gun fired and he was struck in the stomach by eleven buck shots which severely injured him and almost cost him his life. Under such circumstances appellant was not justified as a matter of law in so setting the spring gun, and was not entitled to an instructed verdict.
Art. 1222, P.C., provides, among other things, that a person is justified in killing or doing serious bodily harm to another to prevent burglary. Art. 1389, P.C., defines burglary as follows:
'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 at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft.'
Art. 1390, P.C., further provides:
'He is also guilty of burglary who, with intent to commit a felony or theft, by breaking, enters a house in the daytime.'
Art. 1394, P.C., defines what is meant by the term 'breaking' as follows:
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Ex parte Cannon
...of the offense of burglary and therefore must be pled and proved. See Lowe v. State, 163 Tex.Cr.R. 578, 294 S.W.2d 394 (1956); Marquis v. Benfer, 298 S.W.2d 601 (Tex.Civ.App.--San Antonio 1956, writ ref'd n.r.e); Green v. State, 437 S.W.2d 558 (Tex.Cr.App.1969). See also Williams v. State, ......
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Katko v. Briney, 54169
...and prevent loss or damage to one's valuable property. Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So. 335; Marquis v. Benfer, Tex.Civ.App., 298 S.W.2d 601 (Texas 1956); Grant v. Hass, 31 Tex.Civ.App. 688, 75 S.W. 342 (1903); Gray v. Combs, 7 J.J. Marshall 478 (Ky., 1832), 23 Am.Dec. 431;......
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People v. Ceballos
...issue in State v. Tatum, Mo., 414 S.W.2d 566, 568); State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767, 769; Marquis v. Benfer (Ct. of Civ.App., Tex.), 298 S.W.2d 601, 603; Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686, 687 et seq.) However, an exception to the rule that there may be cr......
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Nowlin v. State, No. 01-05-00156-CR (TX 12/15/2005)
...and enters a house, unless he does so with the intent to commit a felony or the offense of theft, he is not guilty of burglary. Marquis v. Benfer, 298 S.W.2d 601 (Tex. Civ. App.-San Antonio 1956, writ ref'd n.r.e). The element of intent to commit a felony or theft is essential to the offens......