Martinus v. State.

• Decision Date: 18 January 1905
• Citation: 84 S.W. 831
• Parties: MARTINUS v. STATE.
• Court: Texas Court of Criminal Appeals

84 S.W. 831

MARTINUS v. STATE.

Court of Criminal Appeals of Texas.

January 18, 1905.

Appeal from District Court, Bell County; John M. Furman, Judge.

Manuel Martinus was convicted of burglary, and appeals. Reversed.

Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The only question we need consider is an alleged variance between the indictment, or the count of the indictment under which appellant was convicted, and the evidence. The indictment charges appellant with burglary in two counts; the first count charging the burglary of a private residence at night, and the second count charging the burglary of a house at night. The court submitted only the last count in the indictment, and appellant was convicted under that count. The evidence shows unquestionably that the house alleged to have been burglarized, and which appellant is shown to have entered by force, was a private dwelling where a family resided. Consequently there was a variance between the allegations of the count under which appellant was convicted and the evidence in the case. The question here presented was passed upon in Osborne v. State, 61 S. W. 491, 2 Tex. Ct. Rep. 172, Cleland v. State, 61 S. W. 492, 2 Tex. Ct. Rep. 172, and Harvey v. State, 61 S. W. 492, 2 Tex. Ct. Rep. 171. However, those cases were subsequently overruled upon another question in Williams v. State, 62 S. W. 1057, 2 Tex. Ct. Rep. 359; Holland v. State, 74 S. W. 763, 7 Tex. Ct. Rep. 912. The authorities hold that a daytime burglary of a house or the nighttime burglary of a house is a distinct and separate offense from the nighttime burglary of a dwelling house; and if, on an ordinary indictment for burglary of a house, the evidence shows without any controversy that the house was a dwelling house where a family resided, there is a variance, and the conviction cannot be sustained. This is analogous to cases where the indictment charges general theft, and the proof shows it was a theft committed from the person. In such case there is a variance. Harris v. State, 17 Tex. App. 132; Gage v. State, 22 Tex. App. 123, 2 S. W. 638; Dalton v. State (Tex. Cr. App.) 27 S. W. 259; Nichols v. State, 28 Tex. App. 105, 12 S. W. 500.

The judgment is accordingly reversed, and the cause remanded.