Railey v. State

• Decision Date: 19 June 1909
• Parties: RAILEY v. STATE.
• Court: Texas Court of Criminal Appeals

121 S.W. 1120

RAILEY v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1909.

Rehearing Denied November 3, 1909.

Second Motion for Rehearing Ordered Filed November 10, 1909, and Mandate Ordered Held Up.

Appeal from Criminal District Court, Harris County; E. R. Campbell, Judge.

T. L. Railey was convicted of burglary, and appeals. Affirmed.

Brockman, Kahn & Williams, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of burglary, and his punishment assessed at two years' confinement in the penitentiary.

The indictment contains two counts. The first charges burglary by shooting a gun into the dwelling house of Charles Schmidt, with intent to injure Charles Schmidt; and the second count charges burglary in that said appellant did break and enter with intent to commit a felony, in this: That he, the said T. L. Railey, did then and there discharge firearms, to wit, a gun, into the said dwelling house of the said Charles Schmidt, with the intent then and thereby to unlawfully kill and murder the said Charles Schmidt. The court submitted alone the first count in the indictment.

Bill of exceptions No. 1 complains that before this cause was called for trial, cause No. 15,548 being upon call, the district attorney filed his nolle prosequi dismissing cause No. 15,548 pending in said court, wherein this defendant was charged with assault with a gun upon Charles Schmidt, the alleged injured party in this case, with the alleged intent to murder the said Charles Schmidt, alleged to have occurred on the 30th day of April, 1908, in Harris county, Tex., and which cause was based upon the same identical facts as are the basis of this transaction, to wit, the shooting into the house of the alleged injured party, Charles Schmidt, and to which motion, to nol. pros. by the district attorney defendant objected on the ground that said cause No. 15,548, being based upon the same identical facts and the same identical transaction upon which the indictment in this cause was based, it was important to a fair judicial determination of the charge in this case that said cause No. 15,548 be first tried; that the issue of whether or not defendant, if guilty, was guilty of assault to murder, or of aggravated assault, or not guilty, be determined, that he might be able to present to the court such pleas of former jeopardy or former acquittal as might arise from the verdict of the jury under a prosecution of said cause No. 15,548, because the offense of burglary by the law of this state, as defined by articles 838 and 841 of the Penal Code of 1895, could only be constituted by an unlawful entry with the intent to commit theft or a felony; and, should the jury in said cause No. 15,548 find defendant guilty of aggravated assault under the facts in evidence in this case, and it is here stated as a fact that defendant then and there claimed that the facts which would be adduced on the trial on behalf of defendant would show that, immediately prior to the shooting, the alleged injured party, Charles Schmidt, slapped the wife of defendant in the face in view of defendant, defendant being at that time 200 or 300 feet distant, and also called defendant's wife vile names, which insulting conduct as to said names was made known to defendant as soon as he reached the place where his wife was, he having immediately, upon seeing said Schmidt slap his wife, gone hastily towards where his wife and said Schmidt were, and on his approach said Schmidt went into his own house, followed by his own wife, and upon defendant getting to where his (defendant's) wife was, she stated to him that said Schmidt, in addition to striking her, had called her "a bitch" and "a whore," and had used other insulting language to and towards her, and that defendant was greatly outraged by said matters, and immediately went into his own house, which was within a few feet of where said assault occurred, and got his shotgun, and went upon the premises of the said Schmidt, and called to him from the gate to come out of the house, that he wanted to see him, and, hearing no response, went through the gate to the immediate yard surrounding the house of said Schmidt, and towards the door of the said house, and had passed beyond a certain window going towards said door when he heard the voice of said Schmidt in said house at about said window, and turning and stepping back to a point opposite said window, saw said Schmidt, and called to him to come out of the house, that he wanted to see him, and said Schmidt then made a demonstration to reach for a pistol, according to the testimony of defendant, which defendant testified he saw lying on the table near said Schmidt, and that defendant called to him to stop, and, said Schmidt not stopping, defendant fired one barrel of his double-barreled shotgun, which was loaded with small shot, at said Schmidt, the other barrel being loaded but not discharged, and defendant stating that the reason he did not fire said other barrel, which there was nothing to prevent him from doing, was that he saw, after he had fired the first barrel, that said Schmidt did not appear to intend to make any further attempt to injure him (defendant) then; that the shooting into said house could not amount to a felony, and therefore could not constitute such an entry as would go to constitute the act of burglary under the law as defined in said articles 838 and 841 of the Penal Code of 1895, and that it was necessary to try cause No. 15,548 first in order to ascertain the above facts. As appellant insists, article 838 of the Penal Code of 1895 provides that burglary is constituted by the entrance of a house by force, threats, or fraud, with intent to commit a felony or the crime of theft. Article 839 of the Penal Code of 1895, provides that he is also guilty of burglary who, with intent to commit a felony or theft by breaking, enters the house in the daytime. Article 840 of the Penal Code of 1895 provides that it is not necessary that there should be an actual breaking to constitute the offense of burglary, except when the entry is made in the daytime. Article 841 provides the entry is not confined to the entrance of the whole body. It may consist of the entry of any part for the purpose of committing a felony, or it may be constituted by the discharge of firearms or other deadly missiles into the house with the intent to injure the person therein. Appellant contends that article 841 does not define a separate and distinct offense, but is explanatory of articles 839 and 840, and that there cannot be burglary unless the intent is to commit a felony or the crime of theft, and therefore, to discharge firearms into the house with intent to injure, an intent to injure not necessarily being a felony, that it would not be burglary, unless there was a felonious purpose.

In the case of Garner v. State, 31 Tex. Cr. R. 22, 19 S. W. 333, we used this language: "Article 707 of our Penal Code (the old number which corresponds with article 841 of the present Code) defining what constitutes an entry in burglary, declares that `it may be constituted by the discharge of firearms or other deadly missile into the house, with intent to injure any person therein.' Under this provision of the statute, to discharge firearms into a house with intent to injure any person therein is per se burglary, and constitutes all the force and entry that is necessary and essential to that crime. Our conclusion is that the indictment in this case is not defective, for the reason stated by appellant's counsel in his motion to quash; and we are further of opinion that it sufficiently charges a burglary by the discharge of firearms into a house with intent to injure the persons therein. The indictment is in substantially the same language as that used for a similar offense in the case of Searcy v. State, 1 Tex. App. 440, and which indictment was pronounced to be good by the opinion of the court in that case." We hold that article 841 is but an addition to articles 838 and 839, and that the true construction to be placed upon it would be to make article 838 read as follows: The offense of burglary is constituted by entering a house by force, threats or fraud at night, or in a like manner entering a house and remaining concealed therein with the intent in either case to commit a felony or the crime of theft, or it may be constituted by the discharge of firearms or other deadly missile into a house with intent to injure the person therein. The Code itself provides that same must be construed as one harmonious whole, and each provision thereof given validity and force without regard to the distinction that existed at common law between the construction of civil and criminal statutes. In the light of this rule of construction, both statutory and common law, we hold that it would be a strained construction to hold that the intent to injure must be a felony, since this would destroy the liberal wording and evident intent of the law. Article 838 says if one enters a house with intent to commit a felony, he is guilty, and then article 841, which makes it a burglary to shoot firearms into a building with intent to injure an occupant of the building, clearly was designed and intended to set up the offense or mode and method of committing the crime of burglary.

In the case of Hammons v. State, 29 Tex. App. 445, 16 S. W. 99, a converse rule appears to have been laid down to that here announced, but a careful reading of said last-cited decision would show that it was only articles 838 and 839 there under consideration, and not article 841, and any expressions in said opinion to the contrary clearly appear to be dicta. So, reverting to the action of the district attorney, complained of in the above bill of exceptions, we say the court did not err in permitting the dismissal of the assault with intent to murder case, since the state can carve, in drawing its...