Sikes v. State
| Citation | 166 Tex.Crim. 257,312 S.W.2d 524 |
| Decision Date | 02 April 1958 |
| Docket Number | No. 29654,29654 |
| Parties | M. J. SIKES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Dick Young, Houston, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for Burglary of a private residence at night; the punishment, five years.
The State's testimony shows that the prosecuting witness, L. A. Voglesang, and his wife, both of whom were aged, resided in their residence in the City of Rosenberg. On the night in question, after they had retired, Mrs. Voglesang was awakened around midnight by the sound of breaking glass in the front of the house. She then awakened her husband and after securing a pistol and placing it in his hand, heard someone raise a window in the back and enter the house. Mrs. Voglesang then left the house to secure help. Thereafter, upon seeing a man coming toward him, Mr. Voglesang fired one shot with the pistol and engaged the man in a struggle. As the two were struggling on the floor Assistant Chief of Police Ray Owens arrived at the residence and took the man, whom he identified as the appellant, in custody as he was attempting to flee.
As a witness in his own behalf appellant admitted that he entered the residence on the night in question by raising the window but denied that he had any intention to steal. He stated that he had been drinking, that he was intoxicated, and that he was going to see a girl and had entered the wrong house.
Appellant questions the sufficiency of the evidence to support the conviction on two grounds.
First, he insists that there is a fatal variance between the allegation and the proof as to the name of the person whose private residence it was charged he burglarized. Appellant insists that the name of the owner of the residence was alleged in the indictment as 'L. A. Vogelsang' and that the witness testified upon the trial that his name was 'L. A. Vogelsand'. An examination of the record does not reflect that the injured party so testified but did testify that his name was 'L. A. Voglesang'. The names 'Vogelsang' and 'Voglesang' are idem sonans and the difference in spelling was immaterial.
Appellant next insists that the evidence was insufficient because there was no proof that he entered the residence with the intent to commit the crime of theft as was charged in the indictment.
The very act of breaking and entering a house in the nighttime raises the...
To continue reading
Request your trial
-
United States v. Melton
...864 (1963); Behel v. State, 40 Ala.App. 689, 122 So.2d 537 (1960); Garrett v. State, 350 P.2d 983 (Okl.Cr.1960); Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524 (1958); State v. Tellay, 7 Utah 2d 308, 324 P.2d 490 (1958); State v. Gatewood, 169 Kan. 679, 221 P.2d 392 (1950); State v. Wood......
-
Flanagan v. State
...653 (1930) ("Holland" and "Hollins"); Raseley v. State, 470 S.W.2d 899 (Tex.Cr.App.1971) ("Raseley" and "Roseley"); Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524 (1958) ("Vogelsang" and "Voglesang"); Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976) ("Dianna" and Where the name of the i......
-
Rodgers v. State
...653 (1930) ("Holland" and "Hollins"); Raseley v. State, 470 S.W.2d 899 (Tex.Cr.App.1971) ("Raseley" and "Roseley"); Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524 (1958) ("Vogelsang" and "Voglesang"); Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976) ("Dianna" and "Dina"). [some citation......
-
Warren v. State
...e.g. Callahan v. State, 502 S.W.2d 3 (Tex.Cr.App.1973); Hutchinson v. State, 481 S.W.2d 881 (Tex.Cr.App.1972); Sikes v. State, 166 Tex.Cr.R. 157, 257, 312 S.W.2d 524 (1958); Martin v. State, 148 Tex.Cr.R. 232, 186 S.W.2d 80 (1945), it has never been extended to cases where the breaking and ......