Martinez v. State

• Decision Date: 19 June 1907
• Citation: 103 S.W. 930
• Parties: MARTINEZ v. STATE.
• Court: Texas Court of Criminal Appeals

103 S.W. 930

MARTINEZ v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1907.

Rehearing Denied June 27, 1907.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Epitacio Martinez was convicted of burglary, and appeals. Affirmed.

L. Old, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for burglary.

The indictment contained two counts. The conviction occurred under the first, which charged that appellant by force, threats, and fraud, in the daytime, did burglariously and fraudulently break and enter a house then and there at the time of the commission of the offense occupied by J. J. Warren as a private residence, without the consent of the said J. J. Warren, etc. There was a motion in arrest of judgment urged, first, because the indictment does not allege that the house was occupied and actually used as a private residence by Warren at the time of the commission of the offense, and second, that it does allege the burglary of a private residence in the daytime, and that the defendant entered the house of Warren in the daytime and remained concealed until night with the intent to commit a felony or theft. It is also alleged that the indictment is duplicitous, in that the first count charges, or attempts to charge, the offense of burglary of a private residence in the daytime, which is not an offense known to the laws of this state, and the second count charges or attempts to charge the offense of burglary of a private residence in the nighttime; therefore this indictment is vague, uncertain, and insufficient. There are some other grounds suggested in the motion, but they are hypercritical. We are of opinion that the first count, under which the conviction occurred, is sufficient. By the act of the Twenty-Sixth Legislature (Laws 1899, p. 318, c. 178), burglary of a private residence is constituted by entering a private residence by force, threats, or fraud, at night, or in any manner by entering a private residence at any time, either day or night, and remaining concealed therein until night, with the intent, in either case, of committing a felony or the crime of theft. The above is article 839a, Pen. Code 1895, and the punishment under this article is for any term of years in the penitentiary not less than five. In article 845b, passed at the same time, it is provided: "Nothing in articles 839a and 845a of this chapter shall be construed to alter or in any manner repeal articles 838 and 839 of this chapter, nor any part thereof, but shall be construed to make burglary of a private residence at night a separate and distinct offense from burglary, as defined in articles 838 and 839 of this chapter." And article 845c defines what is meant by the expression "private residence." In the first count in the indictment, which forms the basis of this conviction, the use of the words "private residence," in connection with a daytime burglary, was not intended; nor did it bring same within the purview of article 839a. It was not necessary under the facts of this case to have charged the entry to have been made in a private residence, though the facts show that such was the case. The entry was in the daytime, as we understand the testimony, and the use of the expression "private residence" in the indictment, if not surplusage, would not render the indictment vicious. If it should be treated or considered as descriptive, then it would devolve upon the state to prove it. This would not render the indictment vicious under article 838, which defines the offense of burglary as being 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 until night, with the intent of committing the crime of theft. We are...