Reyes v. State

• Decision Date: 01 May 1907
• Parties: REYES v. STATE.
• Court: Texas Court of Criminal Appeals

102 S.W. 421

REYES v. STATE.

Court of Criminal Appeals of Texas.

May 1, 1907.

Appeal from District Court, San Patricio County; E. A. Stevens, Judge.

L. Reyes was convicted of burglary and appeals. Affirmed.

W. H. Baldwin, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of burglary; the punishment assessed being two years in the penitentiary.

Motion in arrest of judgment was urged in the court below because the burglarized house was shown to be a private residence, and the indictment failed to so charge. An inspection of the indictment shows that it is in the usual form, charging burglary of the house then and there occupied by the alleged owner, but did not allege that it was a private residence. The facts show that the house was burglarized in the daytime, and not at night. Article 839a, Pen. Code (Laws 1899, p. 318, c. 178), provides that the 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. Article 845a, Pen. Code, provides the punishment at a term of years not less than five for burglary of a private residence, and article 845b provides that 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 said chapter; and article 845c defines a private residence, as mentioned in the preceding articles, to mean any building or room occupied and actually used at the time of the offense by any person or persons as a place of residence. Under these articles it seems that, in order to constitute the offense of burglary of a private residence, such burglary must be committed at night, or, as provided in article 839a, therefore a burglary committed in the daytime, even of a private residence, is not within the terms of said article 839a. The facts in appellant's case show that the burglary was committed in the daytime, and therefore it was not within the purview of the terms of article 839a, supra. Therefore there is no merit in the motion in arrest of judgment.

There are no bills of exception in the record, and all the grounds relied upon for reversal are brought forward in the motion for a new trial, the fifth ground of which embodies the motion in arrest of judgment above discussed. The first, second, third, and fourth grounds of the motion are based upon the alleged insufficiency of the evidence to support the verdict of the jury and judgment of the court. The evidence is entirely circumstantial. The alleged owner testified with reference to appellant's connection with the burglary, or supposed connection with the burglary, that she had been at her house just shortly before the alleged burglary, and the morning that she left her residence she closed all the doors and...