Sparks v. State
| Decision Date | 23 January 1895 |
| Citation | 29 S.W. 264 |
| Parties | SPARKS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Tarrant county; W. D. Harris, Judge.
Henderson Sparks, convicted of burglary, appeals. Reversed.
J. Y. Cummings and Andrew H. Jackson, for appellant. Mann Trice, for the State.
The appellant was tried and convicted in the lower court of the offense of burglary, and his punishment assessed at imprisonment in the penitentiary for a term of two years. The defendant makes but two assignments of error which require notice. It is insisted that the court should not, in presenting to the jury a definition of the force requisite to constitute burglary, have used the statutory illustration, as "lifting the latch of a door," etc., there being nothing in the evidence indicating that the entry was so made. It is true, there was nothing in the evidence to show that the door was fastened by a latch or bolt, but the court further illustrated the meaning of force by presenting in his charge the very kind of force which the evidence shows was used in this case to effect the entry, to wit, "by pushing open a door that is closed." We hold that it was no error on the part of the court, in defining and illustrating the character of force used to consummate a daytime burglary, to present to the jury the statutory illustrations, although there was no evidence of the particular character of force contained in the statutory illustration. We do not understand a daytime burglary to be circumscribed by these statutory illustrations, but that they are intended to illustrate that any force, however slight, if applied to the house, is used, and an entry is thus effected, the breaking and entry are complete; and, in our opinion, if a door is shut, and held in that position by the friction of the door itself with the sill and facing, and it is pushed, pulled, or shoved open, it is a sufficient breaking and force to constitute a daytime burglary, if the other essentials of the offense are present.
The other assignment relates to the refusal of the court to properly instruct the jury as to the confession of defendant while under arrest. The confessions of defendant, made to Hardwicke, the officer who arrested him, were admitted in evidence on the trial of the case. Hardwicke says, "When I arrested defendant at Waco I warned him, telling him if he made any statement about the matter it could and would be used as evidence against him"; that he made no threats against him. ...
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