Painter v. State

• Decision Date: 21 November 1888
• Citation: 9 S.W. 774
• Parties: PAINTER v. STATE.
• Court: Texas Court of Appeals

Page 774

9 S.W. 774

PAINTER v. STATE.

Court of Appeals of Texas.

November 21, 1888.

Appeal from district court, Parker county; G. A. McCALL, Judge.

Indictment against C. R. Painter for burglary. The building entered was a double corn-crib, covered by a roof, and having a door at one end, tied by a rope. The inside of the building could be reached by the two gables, which were open, having been used to throw corn in, and, perhaps, by means of two other openings, — one 36×12, and 20×18 inches. There was no evidence that the door was unfastened, and, from a track found under one of the holes, it appeared that the exit was made in that way. The article stolen (a pair of saddle-pockets) was in the crib at night, and missed the next morning between 8 and 9 o'clock. When arrested, defendant said that, while he did not enter the hall between the cribs, and take the saddle-pockets, himself, he got another to do it, and then indicated a place where they were found. The court refused to instruct, at defendant's instance, that, if there was a large opening in the house, such as an unfinished gable, which had been used before as a place of entry, and was accessible and easy of entry without force, and the jury believed defendant entered thereby, they should acquit. Defendant was convicted, and appeals.

Richards & Kuteman, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This conviction is for burglary. There were two openings into the house, through which an entry could have been made. The only usual place of entrance was closed late on the evening of the night of the burglary. While the other places or openings were sufficiently large to admit of an entry by an individual, still, neither was a usual place of entrance. Now, it follows, from the provisions of the Code, that, whether the entry into the house was by untying a rope, which secured the door to the house, or by entering at the other openings, the other ingredients attending, burglary would be the result. The fact, though circumstantial, excludes the idea that there was more that one door to the house, or that there was more than one usual entry. Code, arts. 704, 708; Anderson v. State, 17 Tex. App. 309; Hamilton v. State, 11 Tex. App. 120; Carr v. State, 19 Tex. App. 658; Martin v. State, 21 Tex. App. 1. But counsel for defendant contends that the proof fails to show that the entry was at night. The circumstances render it morally certain that the entry was at night. Of this there...